Historical antecedents The origins of human rights may be found both in Greek philosophy and the various world

religions. In the Age of Enlightenment (18th century) the concept of human rights emerged as an explicit category. Man/woman came to be seen as an autonomous individual, endowed by nature with certain inalienable fundamental rights that could be invoked against a government and should be safeguarded by it. Human rights were henceforth seen as elementary preconditions for an existence worthy of human dignity. Before this period, several charters codifying rights and freedoms had been drawn up constituting important steps towards the idea of human rights. During the 6th Century, the Achaemenid Persian Empire of ancient Iran established unprecedented principles of human rights. Cyrus the Great (576 or 590 BC - 530 BC) issued the Cyrus cylinder which declared that citizens of the empire would be allowed to practice their religious beliefs freely and also abolished slavery. The next generation of human rights documents were the Magna Charta Libertatum of 1215, the Golden Bull of Hungary (1222), the Danish Erik Klippings Hndfaestning of 1282, the Joyeuse Entre of 1356 in Brabant (Brussels), theUnion of Utrecht of 1579 (The Netherlands) and the English Bill of Rights of 1689. These documents specified rights which could be claimed in the light of particular circumstances (e.g., threats to the freedom of religion), but they did not yet contain an all-embracing philosophical concept of individual liberty. Freedoms were often seen as rights conferred upon individuals or groups by virtue of their rank or status. In the centuries after the Middle Ages, the concept of liberty became gradually separated from status and came to be seen not as a privilege but as a right of all human beings. Spanish theologists and jurists played a prominent role in this context. Among the former, the work of Francisco de Vitoria (1486-1546) and Bartolom de las Casas (1474-1566) should be highlighted. These two men laid the (doctrinal) foundation for the recognition of freedom and dignity of all humans by defending the personal rights of the indigenous peoples inhabiting the territories colonised by the Spanish Crown. The Enlightenment was decisive in the development of human rights concepts. The ideas of Hugo Grotius (1583-1645), one of the fathers of modern international law, of Samuel von Pufendorf (16321694), and of John Locke (1632-1704) attracted much interest in Europe in the 18th century. Locke, for instance, developed a comprehensive concept of natural rights; his list of rights consisting of life, liberty and property. Jean-Jacques Rousseau (1712-1778) elaborated the concept under which the sovereign derived his powers and the citizens their rights from a social contract. The term human rights appeared for the first time in the French Dclaration des Droits de lHomme et du Citoyen(1789). The people of the British colonies in North America took the human rights theories to heart. The American Declaration of Independence of 4 July 1776 was based on the assumption that all human beings are equal. It also referred to certain inalienable rights, such as the right to life, liberty and the pursuit of happiness. These ideas were also reflected in the Bill of Rights which was promulgated by the state of Virginia in the same year. The provisions of the Declaration of Independence were adopted by other American states, but they also found their way into the Bill of Rights of the American Constitution. The French Dclaration des Droits de lHomme et du Citoyen of 1789, as well as the French Constitution of 1793, reflected the emerging international theory of universal rights. Both the American and French Declarations were intended as systematic enumerations of these rights. The classic rights of the 18th and 19th centuries related to the freedom of the individual. Even at that time, however, some people believed that citizens had a right to demand that the government endeavour to improve their living conditions. Taking into account the principle of equality as contained in the French Declaration of 1789, several constitutions drafted in Europe around 1800 contained classic rights, but also included articles which assigned responsibilities to the government in the fields of employment, welfare, public health, and education. Social rights of this kind were also expressly included in the Mexican Constitution of 1917, the Constitution of the Soviet Union of 1918 and the German Constitution of 1919. In the 19th century, there were frequent inter-state disputes relating to the protection of the rights of minorities in Europe. These conflicts led to several humanitarian interventions and calls for international

protection arrangements. One of the first such arrangements was the Treaty of Berlin of 1878, which accorded special legal status to some religious groups. It also served as a model for the Minorities System that was subsequently established within the League of Nations. The need for international standards on human rights was first felt at the end of the 19th century, when the industrial countries began to introduce labour legislation. This legislation - which raised the cost of labour - had the effect of worsening their competitive position in relation to countries that had no labour laws. Economic necessity forced the states to consult each other. It was as a result of this that the first conventions were formulated in which states committed themselves vis--vis other states in regard to their own citizens. The Bern Convention of 1906 prohibiting night-shift work by women can be seen as the first multilateral convention meant to safeguard social rights. Many more labour conventions were later to be drawn up by the International Labour Organisation (ILO), founded in 1919 (see II1.D). Remarkable as it may seem, therefore, while the classic human rights had been acknowledged long before social rights, the latter were first embodied in international regulations. The atrocities of World War II put an end to the traditional view that states have full liberty to decide the treatment of their own citizens. The signing of the Charter of the United Nations (UN) on 26 June 1945 brought human rights within the sphere of international law. In particular, all UN members agreed to take measures to protect human rights. The Charter contains a number of articles specifically referring to human rights (see II1.A). Less than two years later, the UN Commission on Human Rights (UNCHR), established early in 1946, submitted a draft Universal Declaration of Human Rights (UDHR) to the UN General Assembly (UNGA). The Assembly adopted the Declaration in Paris on 10 December 1948. This day was later designated Human Rights Day. During the 1950s and 1960s, more and more countries joined the UN. Upon joining they formally accepted the obligations contained in the UN Charter, and in doing so subscribed to the principles and ideals laid down in the UDHR. This commitment was made explicit in the Proclamation of Teheran (1968), which was adopted during the first World Conference on Human Rights, and repeated in the Vienna Declaration and Programme of Action, which was adopted during the second World Conference on Human Rights (1993). Since the 1950s, the UDHR has been backed up by a large number of international conventions. The most significant of these conventions are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). These two Covenants together with the UDHR form the International Bill of Human Rights. At the same time, many supervisory mechanisms have been created, including those responsible for monitoring compliance with the two Covenants (see II1.C). Human rights have also been receiving more and more attention at the regional level. In the European, the Inter-American and the African context, standards and supervisory mechanisms have been developed that have already had a significant impact on human rights compliance in the respective continents, and promise to contribute to compliance in the future. These standards and mechanisms will be discussed in more detail throughout this book (see Part II). B. Defining human rights Human rights are commonly understood as being those rights which are inherent in the mere fact of being human. The concept of human rights is based on the belief that every human being is entitled to enjoy her/his rights without discrimination. Human rights differ from other rights in two respects. Firstly, they are characterised by being:

Inherent in all human beings by virtue of their humanity alone (they do not have,e.g., to be purchased or to be granted); Inalienable (within qualified legal boundaries); and Equally applicable to all.

Secondly, the main duties deriving from human rights fall on states and their authorities or agents, not on individuals. One important implication of these characteristics is that human rights must themselves be protected by law (the rule of law). Furthermore, any disputes about these rights should be submitted for adjudication through a competent, impartial and independent tribunal, applying procedures which ensure full equality and fairness to all the parties, and determining the question in accordance with clear, specific and pre-existing laws, known to the public and openly declared. The idea of basic rights originated from the need to protect the individual against the (arbitrary) use of state power. Attention was therefore initially focused on those rights which oblige governments to refrain from certain actions. Human rights in this category are generally referred to as fundamental freedoms. As human rights are viewed as a precondition for leading a dignified human existence, they serve as a guide and touchstone for legislation. The specific nature of human rights, as an essential precondition for human development, implies that they can have a bearing on relations both between the individual and the state, and between individuals themselves. The individual-state relationship is known as the vertical effect of human rights. While the primary purpose of human rights is to establish rules for relations between the individual and the state, several of these rights can also have implications for relations among individuals. This socalled horizontal effect implies, among other things, that a government not only has an obligation to refrain from violating human rights, but also has a duty to protect the individual from infringements by other individuals. The right to life thus means that the government must strive to protect people against homicide by their fellow human beings. Similarly, Article 17(1) and (2) of the ICCPR obliges governments to protect individuals against unlawful interference with their privacy. Another typical example is the Convention of the Elimination of All Forms of Racial Discrimination (CERD), which obliges states to prevent racial discrimination between human beings. State obligations regarding human rights may involve desisting from certain activities (e.g.,torture) or acting in certain ways (e.g., organising free elections).

C. Terminology The term human rights is used to denote a broad spectrum of rights ranging from the right to life to the right to a cultural identity. They involve all elementary preconditions for a dignified human existence. These rights can be ordered and specified in different ways. At the international level, a distinction has sometimes been made between civil and political rights, on the one hand, and economic, social and cultural rights on the other. This section clarifies this distinction. Since other classifications are also used, these will likewise be reviewed, without claiming, however, that these categorisations reflect an international consensus. It is also clear that the various categorisations overlap to a considerable extent. Although human rights have been classified in a number of different manners it is important to note that international human rights law stresses that all human rights are universal, indivisible and interrelated (e.g., Vienna Declaration and Programme of Action (1993), para. 5). The indivisibility of human rights implies that no right is moreimportant than any other.

1. CLASSIC AND SOCIAL RIGHTS One classification used is the division between classic and social rights. Classic rights are often seen to require the non-intervention of the state (negative obligation), and social rights as requiring active intervention on the part of the state (positive obligations). In other words, classic rights entail an obligation for the state to refrain from certain actions, while social rights oblige it to provide certain guarantees. Lawyers often describe classic rights in terms of a duty to achieve a given result (obligation of result) and social rights in terms of a duty to provide the means (obligations of conduct). The evolution of international law, however, has lead to this distinction between classic and social rights

becoming increasingly awkward. Classic rights such as civil and political rights often require considerable investment by the state. The state does not merely have the obligation to respect these rights, but must also guarantee that people can effectively enjoy them. Hence, the right to a fair trial, for instance,requires well-trained judges, prosecutors, lawyers and police officers, as well as administrative support. Another example is the organisation of elections, which also entails high costs. On the other hand, most social rights contain elements that require the state to abstain from interfering with the individuals exercise of the right. As several commentators note, the right to food includes the right for everyone to procure their own food supply without interference; the right to housing implies the right not to be a victim of forced eviction; the right to work encompasses the individuals right to choose his/her own work and also requires the state not to hinder a person from working and to abstain from measures that would increase unemployment; the right to education implies the freedom to establish and direct educational establishments; and the right to the highest attainable standard of health implies the obligation not to interfere with the provision of health care. In sum, the differentiation of classic rights from social rights does not reflect the nature of the obligations under each set of rights.

2. CIVIL, POLITICAL, ECONOMIC, SOCIAL AND CULTURAL RIGHTS Civil rights The term civil rights is often used with reference to the rights set out in the first eighteen articles of the UDHR, almost all of which are also set out as binding treaty norms in the ICCPR. From this group, a further set of physical integrity rights has been identified, which concern the right to life, liberty and security of the person, and which offer protection from physical violence against the person, torture and inhuman treatment, arbitrary arrest, detention, exile, slavery and servitude, interference with ones privacy and right of ownership, restriction of ones freedom of movement, and the freedom of thought, conscience and religion. The difference between basic rights (see below) and physical integrity rights lies in the fact that the former include economic and social rights, but do not include rights such as protection of privacy and ownership. Although not strictly an integrity right, the right to equal treatment and protection in law certainly qualifies as a civil right. Moreover, this right plays an essential role in the realisation of economic, social and cultural rights. Another group of civil rights is referred to under the collective term due process rights. These pertain, among other things, to the right to a public hearing by an independent and impartial tribunal, the presumption of innocence, the ne bis in idem principle (freedom from double jeopardy) and legal assistance (see, e.g., Articles 9, 10, 14 and 15 ICCPR). Political rights In general, political rights are those set out in Articles 19 to 21 UDHR and also codified in the ICCPR. They include freedom of expression, freedom of association and assembly, the right to take part in the government of ones country and the right to vote and stand for election at genuine periodic elections held by secret ballot (see Articles 18, 19, 21, 22 and 25 ICCPR). Economic and social rights The economic and social rights are listed in Articles 22 to 26 UDHR, and further developed and set out as binding treaty norms in the ICESCR. These rights provide the conditions necessary for prosperity and wellbeing. Economic rights refer, for example, to the right to property, the right to work, which one freely chooses or accepts, the right to a fair wage, a reasonable limitation of working hours, and trade union rights. Social rights are those rights necessary for an adequate standard of living, including rights to health, shelter, food, social care, and the right to education (see Articles 6 to 14 ICESCR).

Cultural rights The UDHR lists cultural rights in Articles 27 and 28: the right to participate freely in the cultural life of the community, the right to share in scientific advancement and the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which one is the author (see also Article 15 ICESCR and Article 27 ICCPR).

The alleged dichotomy between civil and political rights, and economic, social and cultural rights Traditionally it has been argued that there are fundamental differences between economic, social and cultural rights, and civil and political rights. These two categories of rights have been seen as two different concepts and their differences have been characterised as a dichotomy. According to this view, civil and political rights are considered to be expressed in very precise language, imposing merely negative obligations which do not require resources for their implementation, and which therefore can be applied immediately. On the other hand, economic, social and cultural rights are considered to be expressed in vague terms, imposing only positive obligations conditional on the existence of resources and therefore involving a progressive realisation. As a consequence of these alleged differences, it has been argued that civil and political rights are justiciable whereas economic, social and cultural rights are not. In other words, this view holds that only violations of civil and political rights can be adjudicated by judicial or similar bodies, while economic, social and cultural rights are by their nature non-justiciable. Over the years, economic, social and cultural rights have been re-examined and their juridical validity and applicability have been increasingly stressed. During the last decade, we have witnessed the development of a large and growing body of caselaw of domestic courts concerning economic, social and cultural rights. This caselaw, at the national and international level, suggests a potential role for creative and sensitive decisions of judicial and quasi-judicial bodies with respect to these rights. Many international fora have elaborated on the indivisibility and interdependency of human rights. As stated in the 1993 Vienna Declaration and Programme of Action: All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. The European Union (EU) and its member states have also made it clear on numerous occasions that they subscribe to the view that both categories of human rights are of equal importance, in the sense that an existence worthy of human dignity is only possible if both civil and political rights and economic, social and cultural rights are enjoyed. In their Declaration of 21 July 1986, they affirmed that the promotion of economic, social and cultural rights as well as of civil and political rights is of paramount importance for the full realisation of human dignity and for the attainment of the legitimate aspirations of every individual. The so-called Limburg Principles on the Implementation of the ICESCR also indicate that a sharp distinction between civil and political rights on the one hand and economic, social and cultural rights on the other is not accurate. These principles were drawn up in 1986 by a group of independent experts, and followed in 1997 by the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights. Together, these documents provide a clear explanation of the nature of the state party obligations under the ICESCR. The same can be said of the 1990 General Comment 3 of the UN Committee on Economic, Social and Cultural Rights on the nature of states parties obligations in relation to the ICESCR. Fortunately, continuous declarations at the international level on the indivisibility and interdependency of all rights have finally been codified by way of the recently adopted Optional Protocol to the ICESCR. States parties to the Optional Protocol will recognise the competence of the Committee on Economic, Social and Cultural Rights to receive and consider individual and collective complaints alleging violations of economic, social and cultural rights set forth in the ICESCR. The Committee will also be empowered to request interim measures to avoid possible irreparable damage to the victims of the alleged violations

and, where it receives reliable information indicating grave or systematic violations, it shall conduct an inquiry which may include a visit to the state party. The adoption of the Optional Protocol on the 60th anniversary of the UDHR, on 10 December 2008, represents an historic advance for human rights. Firstly, economic, social and cultural rights - historically demoted to an inferior status with limited protection - are now finally on an equal footing with civil and political rights. Secondly, through an individual complaints procedure the meaning and scope of these rights will become more precise, facilitating efforts to respect and guarantee their enjoyment. Thirdly, the existence of a potential remedy at the international level will provide an incentive to individuals and groups to formulate some of their economic and social claims in terms of rights. Finally, the possibility of an adverse finding of the Committee on Economic, Social and Cultural Rights will give economic, social and cultural rights salience in terms of the political concerns of governments; which these rights largely lack at present.

3. FUNDAMENTAL AND BASIC RIGHTS Fundamental rights are taken to mean such rights as the right to life and the inviolability of the person. Within the UN, extensive standards have been developed which, particularly since the 1960s, have been laid down in numerous conventions, declarations and resolutions, and which bring already recognised rights and matters of policy which affect human development into the sphere of human rights. Concern that a broad definition of human rights may lead to the notion of violation of human rights losing some of its significance has generated a need to distinguish a separate group within the broad category of human rights. Increasingly, the terms elementary, essential, core and fundamental human rights are being used. Another approach is to distinguish a number of basic rights, which should be given absolute priority in national and international policy. These include all the rights which concern peoples primary material and non-material needs. If these are not provided, no human being can lead a dignified existence. Basic rights include the right to life, the right to a minimum level of security, the inviolability of the person, freedom from slavery and servitude, and freedom from torture, unlawful deprivation of liberty, discrimination and other acts which impinge on human dignity. They also include freedom of thought, conscience and religion, as well as the right to suitable nutrition, clothing, shelter and medical care, and other essentials crucial to physical and mental health. Mention should also be made of so-called participation rights; for instance, the right to participate in public life through elections (which is also a political right; see above) or to take part in cultural life. These participation rights are generally considered to belong to the category of fundamental rights, being essential preconditions for the protection of all kinds of basic human rights.

4. OTHER CLASSIFICATIONS Freedoms Preconditions for a dignified human existence have often been described in terms of freedoms (e.g., freedom of movement, freedom from torture and freedom from arbitrary arrest). United States President Franklin D. Roosevelt summarised these preconditions in his famous Four Freedoms Speech to the United States Congress on 26 January 1941:

Freedom of speech and expression; Freedom of belief (the right of every person to worship God in his own way); Freedom from want (economic understandings which will secure to every nation a healthy peace-time life for its inhabitants); and

Freedom from fear (world-wide reduction of armaments to such a point and in such a thorough fashion that no nation would be able to commit an act of physical aggression against any neighbour). Roosevelt implied that a dignified human existence requires not only protection from oppression and arbitrariness, but also access to the primary necessities of life. Civil liberties The concept of civil liberties is commonly known, particularly in the United States, where the American Civil Liberties Union (a non-governmental organisation) has been active since the 1920s. Civil liberties refer primarily to those human rights which are laid down in the United States Constitution: freedom of religion, freedom of the press, freedom of expression, freedom of association and assembly, protection against interference with ones privacy, protection against torture, the right to a fair trial, and the rights of workers. This classification does not correspond to the distinction between civil and political rights. Individual and collective rights Although the fundamental purpose of human rights is the protection and development of the individual (individual rights), some of these rights are exercised by people in groups (collective rights). Freedom of association and assembly, freedom of religion and, more especially, the freedom to form or join a trade union, fall into this category. The collective element is even more evident when human rights are linked specifically to membership of a certain group, such as the right of members of ethnic and cultural minorities to preserve their own language and culture. One must make a distinction between two types of rights, which are usually called collective rights: individual rights enjoyed in association with others, and the rights of a collective. The most notable example of a collective human right is the right to self-determination, which is regarded as being vested in peoples rather than in individuals (see Articles 1 ICCPR and ICESCR). The recognition of the right to self-determination as a human right is grounded in the fact that it is seen as a necessary precondition for the development of the individual. It is generally accepted that collective rights may not infringe on universally accepted individual rights, such as the right to life and freedom from torture. First, second and third generation rights The division of human rights into three generations was first proposed by Karel Vasak at the International Institute of Human Rights in Strasbourg. His division follows the principles of Libert, galit and Fraternit of the French Revolution. First generation rights are related to liberty and refer fundamentally to civil and political rights. The second generation rights are related to equality, including economic, social and cultural rights. Third generation or solidarity rights cover group and collective rights, which include, inter alia, the right to development, the right to peace and the right to a clean environment. The only third generation right which so far has been given an official human rights status - apart from the right to selfdetermination, which is of longer standing - is the right to development (see the Declaration on the Right to Development, adopted by the UNGA on 4 December 1986, and the 1993 Vienna Declaration and Programme of Action (Paragraph I, 10)). The Vienna Declaration confirms the right to development as a collective as well as an individual right, individuals being regarded as the primary subjects of development. Recently, the right to development has been given considerable attention in the activities of the High Commissioner for Human Rights. Adoption of a set of criteria for the periodic evaluation of global development partnerships from the perspective of the right to development by the Working Group on the Right to Development, in January, 2006, evidence the concrete steps being taken in this area. The EU and its member states also explicitly accept the right to development as part of the human rights concept. While the classification of rights into generations has the virtue of incorporating communal and collective rights, thereby overcoming the individualist moral theory in which human rights are grounded, it has been criticised for not being historically accurate and for establishing a sharp distinction between

all human rights. Indeed, the concept of generations of rights is at odds with the Teheran Proclamation and the Vienna Declaration and Programme of Action, which establish that all rights are indivisible, interdependent and interrelated.

D. Universality of human rights In the last fifty years the principle of universality has become central to the interpretation of human rights law. The recognition and protection of fundamental rights had already to some extent been codified before Second World War, albeit primarily in national law, and especially in national constitutions. It was, however, only after the Second World War that politicians and civil society alike came to realise that national schemes for the protection of human rights did not suffice. Since then, human rights have found their way into a wide range of regional and global treaties. The entry into force of the UN Charter on 24 October 1945 marked the formal recognition of human rights as a universal principle, and compliance with human rights was mentioned in the Preamble and in Articles 55 and 56 as a principle to be upheld by all states. In 1948, it was followed by the adoption of the UDHR, and in 1966 by the ICESCR and the ICCPR and its First Optional Protocol (see II1.C). The UDHR specifies over thirty rights. It regards the protection of these rights as a common standard to be ultimately achieved. Several governments and scholars maintain that a number of human rights in the UDHR have the character of jus cogens (a peremptory norm, which states are not allowed to derogate from; a rule which is considered universally valid). Its universality is underlined by the fact that in 1948 it was formulated and agreed upon not only by Western states, but also by representatives from countries such as China, the Soviet Union, Chile, and Lebanon. It was moreover adopted without any objection: no votes against and only eight abstentions. As noted above, during the 1950s and 1960s, more and more countries became independent and joined the UN. In doing so they endorsed the principles and ideals laid down in the UDHR. This commitment was underlined in the Proclamation of Teheran of 1968. The Proclamation was adopted by 85 states, of which more than 60 countries did not belong to the Western Group. The Proclamation stated: The Universal Declaration of Human Rights states a common understanding of the peoples of the world concerning the inalienable and inviolable rights of all members of the human family and constitutes an obligation for the members of the international community. The Vienna Declaration and Programme of Action, the results of the 1993 Second World Conference on Human Rights (which was attended by 171 states), once more endorsed and underlined the importance of the UDHR. It stated that the UDHR 'constitutes a common standard of achievement for all peoples and all nations, using the language of the Declaration itself. The universality of human rights has been, and still is, a subject of intense debate, including in anticipation of, during and after the 1993 World Conference on Human Rights. The Vienna document itself states that the universal nature of human rights is beyond question. It also says: all human rights are universal; adding, however, that the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind. This national margin of appreciation, as it is called, does not, however, according to the Vienna document, relieve states of their duty to promote and protect all human rights, regardless of their political, economic and cultural systems. Also relevant when considering the universality of human rights is the increasing number of ratifications of international human rights conventions. In March 2010, the ICESCR had been ratified by 160 states and the ICCPR by 165 states. Several other UN conventions, as well as conventions Definitions and Classifications 39 Umbroti FYRIR GURNU - Nota_Layout 1 8.4.2010 11:19 Page 39 of the International Labour Organisation (ILO), have also been ratified by many states; indeed in some cases by nearly all states. Most strikingly, the Convention on the Rights of the Child (CRC), adopted in 1989, has been ratified by 193 states (March 2010)

E. Human rights and interference in domestic affairs In earlier times, whenever human rights violations were openly condemned by third states, the authorities concerned countered with references to unacceptable interference in internal affairs. In more recent years, this argument has lost ground when human rights are at stake. The Second World War constituted a turning point in the way the international community regards its responsibility for the protection of and respect for human rights. The long-standing principle of state sovereignty vis-vis ones nationals has in the course of the years been eroded. The UN Charter explicitly proclaimed human rights to be a matter of legitimate, international concern: [...] the United Nations shall promote [...] universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion (Article 55); and All Members pledge themselves to take joint and separate action in co-operation with the Organisation for the achievement of the purposes set forth in Article 55 (Article 56). These commitments were reaffirmed in the Sixth and Seventh principles of the Helsinki Final Act of the Conference on Security and Co-operation in Europe of 1975 (see II5), and during the Vienna World Conference on Human Rights of 1993. The traditional (broad) interpretation of the principle of national sovereignty has thus been limited in two crucial, and related, respects. Firstly, how a state treats its own subjects is nowadays considered a legitimate concern of the international community. Secondly, there are now superior international standards, established by common consent, which may be used for appraising domestic laws, and the actual conduct of sovereign states within their own territories, and in the exercise of their internal jurisdiction. Thus, whether a state has accepted international human rights norms, laid down in conventions, is relevant but not the only decisive factor: human rights, as formulated in the UDHR, have become a matter of international concern and do not fall within the exclusive jurisdiction of states. As stated in the 1993 Vienna Declaration and Programme of Action: [T]he promotion and protection of all human rights is a legitimate concern of the international community. In other words: there is a right to interfere in case of human rights violations. Interference can be defined, in this context, as any form of international involvement in the affairs of other states, excluding involvement in which forms of coercion are used (intervention). The distinction between interference and intervention is relevant: the fact that the principle of noninterference does not apply to human rights questions does not mean that states may react to human rights violations by making use of military means. This could amount to a violation of the prohibition of use of force, as laid down in the UN Charter (Article 2(4)). Some human rights experts claim that the United Nations Security Council should decide that a certain human rights situation poses a threat to international peace and security and on the basis of that decision authorise military action for humanitarian purposes, undertaken under the auspices of the UN.

SOURCE OF IHR LAW

The sources of international law are many and states commit to them to different degrees. The internationally accepted classification of sources of international law is formulated in Article 38 of the Statute of the International Court of Justice. These are: a) International conventions, whether general or particular; b) International custom, as evidence of general practice accepted as law; c) The general principles of law recognised by civilised nations; d) Subsidiary means for the determination of rules of law such as judicial decisions and teachings of the most highly qualified publicists. These sources will be analysed below. A. International conventions International treaties are contracts signed between states. They are legally binding and impose mutual obligations on the states that are party to any particular treaty (states parties). The main particularity of human rights treaties is that they impose obligations on states about the manner in which they treat all individuals within their jurisdiction. Even though the sources of international law are not hierarchical, treaties have some degree of primacy. More than forty major international conventions for the protection of human rights have been adopted. International human rights treaties bear various titles, including covenant, convention and protocol; but what they share are the explicit indication of states parties to be bound by their terms. Human rights treaties have been adopted at the universal level (within the framework of the United Nations and its specialised agencies, for instance, the ILO and UNESCO) as well as under the auspices of regional organisations, such as the Council of Europe (CoE), the Organisation of American States (OAS) and the African Union (AU) (formerly the Organisation of African Unity (OAU)). These organisations have greatly contributed to the codification of a comprehensive and consistent body of human rights law.

1. UNIVERSAL CONVENTIONS FOR THE PROTECTION OF HUMAN RIGHTS Human rights had already found expression in the Covenant of the League of Nations, which led, inter alia, to the creation of the International Labour Organisation. At the San Francisco Conference in 1945, held to draft the Charter of the United Nations, a proposal to adopt a Declaration on the Essential Rights of Man was put forward but was not examined because it required more detailed consideration than was possible at the time. Nonetheless, the UN Charter clearly speaks of promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion (Article 1, para. 3). The idea of promulgating an international bill of rights was developed immediately afterwards and led to the adoption in 1948 of the Universal Declaration of Human Rights (UDHR). The UDHR, adopted by a resolution of the United Nations General Assembly (UNGA), although not a treaty, is the earliest comprehensive human rights instrument adopted by the international community. On the same day that it adopted the Universal Declaration, the UNGA requested the UN Commission on Human Rights toprepare, as a matter of priority, a legally binding human rights convention. Wide differences in economic and social philosophies hampered efforts to achieve agreement on a single instrument, but in 1954 two draft conventions were completed and submitted to the UNGA for consideration. Twelve years later, in 1966, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) were adopted, as well as the First Optional Protocol to the ICCPR, which established an individual complaints procedure.

Both Covenants and the Optional Protocol entered into force in 1976. A Second Optional Protocol to the ICCPR, on the abolition of the death penalty, was adopted in 1989 and entered into force in 1991. The International Bill of Human Rights consists of the Universal Declaration of Human Rights, the ICESCR and the ICCPR and its two Optional Protocols. The International Bill of Rights is the basis for numerous conventions and national constitutions. The ICESCR and the ICCPR are key international human rights instruments. They have a common Preamble and Article 1, in which the right to self-determination is defined. The ICCPR primarily contains civil and political rights. The supervisory body is the Human Rights Committee. The Committee provides supervision in the form of review of reports of states parties to the Covenant, as well as decisions on inter-state complaints. Individuals alleging violations of their rights under the Covenant can also bring claims against states to the Committee provided the state concerned is party to the First Optional Protocol. By March 2010, a total of 165 states were parties to the Covenant, 113 to the First Optional Protocol and 72 to the Second Optional Protocol (see II1.C). The ICESCR consists of a catalogue of economic, social and cultural rights in the same vein as the social part of the UDHR. Supervision is provided for in the form of reporting by states parties to the Covenant and review of state reports has been entrusted by the UN Economic and Social Council (ECOSOC) to the Committee on Economic, Social and Cultural Rights. An Optional Protocol establishing a system of individual and collective complaints was adopted on 10 December 2008. It will be opened for signature and ratification in March 2009.In March 2010, a total of 160 states were parties to the Covenant (see II1.C). Besides the International Bill of Human Rights, a number of other instruments have been adopted under the auspices of the UN and other international agencies. They may be divided into three groups: a) Conventions elaborating on certain rights, inter alia:

The Convention on the Prevention and Punishment of the Crime of Genocide (1948) ILO 98 concerning the Right to Organise and to Bargain Collectively (1949) The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) International Convention for the Protection of All Persons from Enforced Disappearance (2006) b) Conventions dealing with certain categories of persons which may need special alia: protection, inter

The Convention relating to the Status of Refugees (1951), and the 1967 Protocol thereto The Convention on the Rights of the Child (1989) Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts (2000) Optional Protocol to the Convention on the Rights of the Child on the sale of children,child prostitution and child pornography (2000) ILO 169 concerning Indigenous and Tribal Peoples in Independent Countries (1989) The International Convention on the Protection of the Rights of All Migrant Workers andMembers of Their Families (1990) The Convention on the Rights of Persons with Disabilities (2006) c) Conventions seeking to eliminate discrimination

ILO 111 concerning Discrimination in respect of Employment and Occupation (1958) UNESCO Convention against Discrimination in Education (1960)

The International Convention on the Elimination of All Forms of Racial Discrimination (1965) The International Convention on the Suppression and Punishment of the Crime of Apartheid(1973) The Convention on the Elimination of All Forms of Discrimination Against Women (1979)and its Optional Protocol (2000)

2. REGIONAL CONVENTIONS FOR THE PROTECTION OF HUMAN RIGHTS The UN Charter encourages the adoption of regional instruments for the establishment of human rights obligations, many of which have been of crucial importance for the development of international human rights law. The Council of Europe adopted the European Convention for the Protection of Human Rights and Fundamental Freedoms in 1950 (see II2.C), supplemented by the European Social Charter in 1961(see II2.C), the European Convention for the Prevention of Torture and Inhuman or DegradingTreatment or Punishment in 1987 (see II2.C), and the Framework Convention on National Minorities in 1994 (see II2.C). The American Convention on Human Rights was adopted in 1969, under the auspices of the Organisation of American States (see II3.B). This Convention has been complemented by two protocols, the 1988 Protocol of San Salvador on economic, social and cultural rights and the 1990 Protocol to abolish the death penalty. Other Inter-American Conventions include the Convention to Prevent and Punish Torture (1985), the Convention on the Forced Disappearances of Persons (1994), the Convention on the Prevention, Punishment and Eradication of Violence against Women (1995) and the Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities (see II3.B). In 1981, the Organisation of African Unity, now the African Union, adopted the African Charter on Human and Peoples Rights (see II4.B). Three protocols to the Charter have been adopted: the Additional Protocol on the Establishment of the African Court on Human and Peoples Rights (1998), the Protocol on the Rights of Women in Africa (2003) and the Protocol on the Statute of the African Court of Justice and Human Rights (2008) (see II4.B). Other African instruments include the Convention Governing the Specific Aspects of Refugee Problems in Africa (1969) (see II4.B) and the African Charter on the Rights and Welfare of the Child (1990) (see II4.B).

B. International custom Customary international law plays a crucial role in international human rights law. The Statute of the International Court of Justice refers to general practice accepted as law. In order to become international customary law, the general practice needs to represent a broad consensus in terms of content and applicability, deriving from a sense that the practice is obligatory (opinio juris et necessitatis). Customary law is binding on all states (except those that may have objected to it during its formation), whether or not they have ratified any relevant treaty. One of the important features of customary international law is that customary law may, under certain circumstances, lead to universal jurisdiction or application, so that any national court may hear extraterritorial claims brought under international law. In addition, there also exists a class of customary international law, jus cogens, or peremptory norms of general international law, which are norms accepted and recognised by the international community of states as a whole as norms from which noderogation is permitted. Under the Vienna Convention on the Law of Treaties (VCLT) any treaty which conflicts with a peremptory norm is void. Many scholars argue that some standards laid down in the Universal Declaration of Human Rights (which in formal terms is only a resolution of the UNGA and as such not legally binding) have become part of customary international law as a result of subsequent practice; therefore, they would be binding upon all

states. Within the realm of human rights law the distinction between concepts of customary law, treaty law and general principles of law are often unclear. The Human Rights Committee in its General Comment 24 (1994) has summed up the rights which can be assumed to belong to this part of international law which is binding on all states, irrespective of whether they have ratified relevant conventions, and to which no reservations are allowed: [A] State may not reserve the right to engage in slavery, to torture, to subject persons to cruel, inhuman or degrading treatment or punishment, to arbitrarily deprive persons of their lives, to arbitrarily arrest and detain persons, to deny freedom of thought, conscience and religion, to presume a person guilty unless he proves his innocence, to execute pregnant women and children, to permit the advocacy of national, racial or religious hatred, to deny to persons of marriageable age the right to marry, or to deny to minorities the right to enjoy their own [...]. culture, profess their own religion, or use their own language. And [...] the right to a fair trial

Although this list is subject to debate and could possibly be extended with other rights not in the field of civil and political rights (for instance, genocide and large parts of the Four Geneva Conventions on International Humanitarian Law), the Committee underlines that there is a set of human rights which de jure are beyond the (politically oriented) debate on the universality of human rights.

C. General principles of law In the application of both national and international law, general or guiding principles are used. In international law they have been defined as logical propositions resulting from judicial reasoning on the basis of existing pieces of international law. At the international level, general principles of law occupy an important place in case-law regarding human rights. A clear example is the principle of proportionality, which is important for human rights supervisory mechanisms in assessing whether interference with a human right may be justified. Why are general principles used? No legislation is able to provide answers to every question and to every possible situation that arises. Therefore, rules of law or principles that enable decision-makers and members of the executive and judicial branches to decide on the issues before them are needed. General principles of law play two important roles: on the one hand, they provide guidelines for judges, in particular, in deciding in individual cases; on the other hand, they limit the discretionary power of judges and of members of the executive in their decisions in individual cases.

D. Subsidiary means for the determination of rules of law According to Article 38 of the Statute of the International Court of Justice, judicial decisions and the teachings of the most qualified publicists are subsidiary means for the determination of rules of law. Therefore, they are not, strictly speaking, formal sources, but they are regarded as evidence of the state of the law. As for the judicial decisions, Article 38 of the Statute of the International Court of Justice is not confined to international decisions (such as the judgements of the International Court of Justice, the InterAmerican Court, the European Court and the future African Court on Justice and Human Rights); decisions of national tribunals relating to human rights are also subsidiary sources of law. The writings of scholars contribute to the development and analysis of human rights law. Compared to the formal standard setting of international organs the impact is indirect. Nevertheless, influential contributions have been made by scholars and experts working in human rights fora, for instance, in the UN Sub-Commission on the Promotion and Protection of Human Rights, as well as by highly regarded NGOs, such as Amnesty International and the International Commission of Jurists.

E. Other contributions to standard setting Some instruments or decisions of political organs of international organisations and human rights supervisory bodies, although they are not binding on states parties per se, nonetheless carry considerable legal weight. Numerous international organs make decisions that concern human rights and thereby strengthen the body of international human rights standards. Such nonbinding human rights instruments are called soft law, and may shape the practice of states, as well as establish and reflect agreement of states and experts on the interpretation of certain standards. Every year, the UNGA and the Human Rights Council adopt dozens of resolutions and decisions dealing with human rights. Organisations such as the ILO and the various political organs of the Council of Europe also adopt such resolutions. Some of these resolutions, sometimes called declarations, adopt specific standards on specific human rights that complement existing treaty standards. Prominent examples include the Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live, adopted by the UNGA in 1985 (Resolution 40/144, 13 December 1985), the Guiding Principles on Internal Displacement, adopted by the UN Commission on Human Rights in 1999 (Doc E/CN.4/1998/53/Add.2) and the United Nations Declaration on the Rights of Indigenous Peoples, adopted by the UNGA in 2007 (Resolution 61/295, 13 September 2007). Numerous declarations adopted by the UNGA have later given rise to negotiations leading to treaty standards. Not all resolutions and decisions aim at standard setting; many deal with concrete situations where diverging political interests come more into play. 1. DECISIONS OF POLITICAL ORGANS Decisions of political organs involving political obligations play a special role and can have an impact on human rights standard setting, e.g., certain documents of the Organisation on Security and Co-operation in Europe (OSCE) (Conference on Security and Co-operation in Europe until 1995). Since 1975, the OSCE has devoted much attention to the so-called Human Dimension of European cooperation. OSCE documents are often drafted in a relatively short period of time and do not pretend to be legally binding. Thus, they offer the advantage of flexibility and relevance to current events exercising influence upon states. For instance, the Document of the Copenhagen Meeting of the Conference of the Human Dimension of the CSCE of 1990 made optimal use of the changes that had taken place in Europe after the fall of the Berlin Wall in 1989. This document included paragraphs on national minorities, which have been used as standards to protect minorities and as guidelines for later bilateral treaties. Although this kind of document reflects the dynamism of international human rights law, some experts worry that the political nature of these documents may lead to confusion, as newer texts might contradict existing instruments or broaden the scope of attention for human rights excessively by including too many related issues.

2. DECISIONS OF SUPERVISORY ORGANS Numerous human rights supervisory mechanisms have been established to monitor the compliance by states with international human rights standards. Within the UN context, these supervisory bodies are often called treaty bodies. They interpret international treaties, make recommendations and, in some cases, make decisions on cases brought before them. These decisions, opinions and recommendations may not be legally bindingper se, but their impact on international human rights law (standards) is significant. In this context, treaty bodies often prepare so-called General Comments or Recommendations, elaborating on the various articles and provisions of their respective human rights instruments. The purpose of these general comments or recommendations is to assist the states parties in fulfilling their

obligations. The Human Rights Committee and the Committee on Economic, Social and Cultural Rights are highly regarded for their practice in this respect. These general comments/recommendations reflect the developments within each Committee as to the interpretation of specific provisions and they aim to provide authoritative guidance to states parties. As such, they have a significant influence on the behaviour of states parties.

F. Concluding remarks Most states are bound by numerous international instruments guaranteeing a broad range of human rights. What happens when a state is bound by two international instruments setting out diverging levels of protection of a particular human right? The general rule is that when a state is bound by numerous instruments, it is to implement the most far-reaching obligation or highest standard. Most human rights conventions contain special provisions to this effect. For instance, Article 5(2) ICCPR and Article 5(2) ICESCR state that There shall be no restriction upon or derogation from any of the fundamental human rights recognised or existing in any state party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognise such rights or that it recognises them to a lesser extent. In the same vein, Article 55 ECHR sets out that Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party. Similarly, Article 41 CRC provides that nothing in the Convention shall affect any provisions which are more conducive to the realisation of the rights of the child either in the law of a state party or in international law in force in that state. Within the realm of standard setting, the number of ratifications and accessions to conventions merits special attention. Widely ratified human rights conventions have greater value and impact, and reinforce the universal character of human rights law, as well as the equality of all human beings under that law. Wide accession or ratification (with the least possible number of reservations) contributes greatly to ensuring equal application of human rights standards. Many scholars contend that much of the standard-setting work has been completed. In addition, it has been argued that in recent decades there has been an excessive proliferation of standards, and what is needed is a means for better implementation of the existing norms. However, although the basic human rights have been roughly defined, it may, for instance, emanate from consistent decisions of supervisory mechanisms that further elaboration is needed. Better legal protection may be necessary for, inter alia, human rights defenders, lesbian, gay, bisexual and transgender people and persons belonging to indigenous peoples, or in relation to particular issues such as transitional justice or scientific advances in biomedicine.

GENERAL COMMENTS AND GENERAL RECOMMENDATIONS UN treaty monitoring bodies have begun the practice of preparing General Comments or Recommendations on the provisions of their respective treaties. As indicated by the Committee on Economic, Social and Cultural Rights the Committee endeavours, through its general comments, to make the experience gained so far through the examination of States reports available for the benefit of all States Parties in order to assist and promote their further implementation of the Covenant; to draw the attention of the States Parties to insufficiencies disclosed by a large number of reports; to suggest improvements in the reporting procedures; and to stimulate the activities of the States Parties, international organisations and the specialised agencies concerned in achieving progressively and effectively the full realisation of the rights recognised in the Covenant.

The General Comments or Recommendations are useful tools to clarify the normative content of the Covenants because they are general in nature and provide an abstract picture of the scope of the obligations. General Comments and Recommendations enable the Committees to announce their interpretations of the different provisions of the treaties, and the interpretations of the normative scope of the treaties set out in the General Comments/ Recommendations have achieved a significant degree of acceptance by states parties. As of March 2010, the Committee on Economic, Social and Cultural Rights had adopted 21 General Comments; the Human Rights Committee had adopted 33 General Comments; the Committee on the Elimination of Racial Discrimination had adopted 33 General Recommendations; the Committee on the Elimination of Discrimination against Women had adopted 26 General Recommendations; the Committee against Torture had adopted two General Comments; and the Committee on the Rights of the Child had adopted 12 General Comments. The Committees established under the CRPD and CMW have yet to adopt General Comments.

The United Nations

On New Years Day 1942, twenty-six governments signed the Declaration of the United Nations in Washington, D.C., the United States, and another twenty-one governments followed suit before the end of the Second World War. In 1945, representatives of 50 countries met in San Francisco at the United Nations Conference on International Organisation to draw up the United Nations Charter, an international treaty that sets out basic principles of international relations. The UN Charter was signed on 26 June 1945 by the representatives of the 50 countries, making international concern for human rights an established part of international law. The United Nations officially came into existence on 24 October 1945, when the Charter had been ratified by China, France, the Soviet Union, the United Kingdom, the United States and by a majority of other signatories. In the Preamble to the Charter, the signatories reaffirm faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women [...], echoing the belief of the era that the massive human rights violations committed during the Second World War could have been prevented and the hope that they should never be repeated. Today, nearly every nation in the world belongs to the UN; membership totals 192 countries. The United Nations has six principal organs: the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the International Court of Justice and the Secretariat (Article 7 UN Charter). In addition, the United Nations system consists of several specialised agencies and a number of other specialised bodies dealing with human rights. Modern international human rights law is to a large extent founded on the standard-setting work of the United Nations; through UN efforts governments have established many multilateral agreements and this comprehensive body of international law, including human rights law, is one of the UNs greatest achievements. With its standard-setting work nearly complete, the UN is shifting the emphasis of its human rights efforts to the implementation of human rights laws. A. Main United Nations bodies dealing with human rights Many UN bodies have a role to play in the field of human rights. The most relevant bodies are described in this section. THE UNITED NATIONS CHARTER When states become members of the UN they accept the obligations of the UN Charter that sets out the four main purposes of the UN: to maintain international peace and security; to develop friendly relations among nations; to co-operate in solving international problems and in promoting respect for human rights; and to be a centre for harmonising the actions of nations. The UN Charter refers to human rights in the Preamble and Articles 1, 8, 13, 55, 56, 62, 68 and 76: Article 1 defines one of the objectives of the UN as: [?] promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion. Article 8 states that the United Nations shall place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs [?]. Article 13 says that the responsibilities, functions and powers of the General Assembly shall include assisting in the realisation of human rights and fundamental freedoms for all [?]. Article 55 describes the purposes of the UN in international co-operation, which include under (c): universal respect for, and observance of human rights and fundamental freedoms for all without discrimination as to race, sex, language, or religion. Article 56 contains a pledge by all members to take joint and separate action in co-operation with the Organisation for the achievement of the purposes set forth in Article 55.

Article 62 contains similar provisions in describing the responsibilities, functions and powers of the Economic and Social Council (ECOSOC). Article 68 authorises the ECOSOC to set up commissions in economic and social fields and for the promotion of human rights. Article 76 contains human rights provisions in the description of the international trusteeship system. 1. The General Assembly (unga) The General Assembly is composed of all member states of the United Nations, each state having one vote. Article 13 UN Charter states that one of the functions of the UN General Assembly is to initiate studies and make recommendations for the purpose of promoting international co-operation in the economic, social, cultural, educational and health fields and assisting in the realisation of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. Accordingly, the UNGA adopted the Universal Declaration on Human Rights (UDHR) on 10 December 1948 and, since then, a number of other human rights instruments. Most human rights issues that the UNGA deals with are laid out in reports of the Economic and Social Council (ECOSOC) or in resolutions adopted by the UNGA at earlier sessions. The UNGA refers most issues regarding human rights to its Third Committee, which is responsible for social, humanitarian and cultural issues. The Sixth Committee (Legal Committee) also deals occasionally with human rights issues. The UNGA has set up a number of subsidiary organs important in relation to human rights: the Human Rights Council, the Special Committee on the Situation regarding Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples (the Special Committee on Decolonization), the Special Committee to Investigate Israeli Practices Affecting Human Rights of the Population of the Occupied Territories, and the Committee on the Exercise of the Inalienable Rights of the Palestinian People. The UN also had a Special Committee on Apartheid for several years. 2. The Economic and Social Council (ECOSOC) In contrast to the UNGA, the Economic and Social Council consists of only 54 members. ECOSOC was established under the UN Charter as the principal organ to coordinate economic, social, and related work of the fourteen UN specialised agencies, functional commissions and five regional commissions. The Council also receives reports from eleven UN funds and programmes. Article 62 of the UN Charter states that the ECOSOC may make recommendations for the purpose of promoting respect for and observance of human rights and fundamental freedoms for all. The ECOSOC may also submit draft conventions to the UNGA and organise international conferences. Under the provisions of Article 68, the ECOSOC can set up commissions in economic and social fields and for the promotion of human rights. Article 64 empowers the ECOSOC to make arrangements with the UN member states and its Specialised Agencies to obtain reports on the steps taken to put its own recommendations and those of the UNGA into effect. The ECOSOC has established a number of important commissions in the sphere of human rights: a) the former UN Commission on Human Rights and its Sub-Commission on the Promotion and Protection of Human Rights; b) the Commission on the Status of Women; c) the Commission for Social Development; and d) the Commission on Crime Prevention and Criminal Justice. In carrying out its mandate, ECOSOC consults with academics, business sector representatives and more than 2,100 registered non-governmental organisations. 3. The UN Human Rights Council The Human Rights Council (the Council) is the principle UN intergovernmental body responsible for human rights. It was established by UNGA resolution 60/251 on 15 March 2006. The Council replaced the Commission on Human Rights (the Commission), assuming most of its mandates, mechanisms and responsibilities. The Commission was increasingly criticized for being politicised and selective and some

members used the body to avoid criticism for human rights violations instead of for the promotion and protection of human rights. The former UN Secretary-General, Kofi Annan, claimed that the Commission suffered a credibility deficit which cast a shadow on the reputation of the UN system as a whole. He therefore instituted a comprehensive reform of the body. There are many significant differences between the Council and its predecessor. First, it is accountable to the UNGA which is composed of all UN members, unlike the Commission, a suborgan of the ECOSOC, comprised of only 54 member states. The status of the Council within the UN structure may be reviewed with a view to elevating it to a main organ of the UN. Second, the Council is comprised of 47 member states, whereas the size of the former Commission varied. Third, members of the Council are elected directly and individually by secret ballot by an absolute majority of the UNGA, based on equitable geographic distribution. The ECOSOC elected members to the Commission by simple majority from countries which were nominated by each geographic block. A fourth distinction is that although membership is open to all states, the human rights records and voluntary human rights pledges and commitments of candidates are to be taken into account when electing states to the Council. Furthermore, if a member state commits gross and systematic violations of human rights, the UNGA may suspend its rights of membership in the Council. Moreover, the Council meets regularly throughout the year and schedules no fewer than three sessions per year, including a main session, for a total duration of no less than ten weeks. It may also hold special sessions at the request of any of its members as long as the request is supported by one third of the membership of the Council (Article 10 of resolution 60/251). In contrast, the Commission used to meet for six weeks every year in March and April and had held only four special sessions since 1990. Mandate The Council has assumed most mandates, mechanisms, functions and responsibilities previously entrusted to the Commission while also introducing new mechanisms which will hopefully strengthen the universal promotion and protection of human rights. Resolution 60/251 stipulates that the Council shall be guided by the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation, with a view to enhancing the promotion and protection of all human rights, civil, political, economic, social and cultural rights including the right to development. Although the Commission failed in many respects, the formulation of several human rights standards was a major achievement. This function is inherited by the Council which shall make recommendations for the further development of international law in the field of human rights. The Council shall also promote human rights education and learning and provide advisory services, technical assistance and capacity building in consultation with and with the consent of member states. It also serves as a forum for dialogue on thematic issues on all human rights and contributes, through dialogue and cooperation, towards the prevention of human rights violations and shall respond promptly to human rights emergencies. It is expected to work in close cooperation with governments, regional organisations, national human rights institutions and civil society because it cannot achieve its goals without actively involving these stakeholders. A new feature is that the Council is authorised to promote the full implementation of human rights obligations undertaken by states and monitor the goals and commitments related to the promotion and protection of human rights emanating from UN conferences and summits. The Council assumes the Commissions 1503 procedure, albeit improved, and is empowered to address situations of human rights violations, including gross and systematic violations, and make corresponding recommendations. The Council may deal with gross and systematic violations of human rights in its regular and special sessions and may adopt resolutions and decisions on the issue under consideration. One of the innovative features introduced by Resolution 60/251 is the universal periodic review (UPR). This is a new human rights mechanism through which the Council periodically reviews the fulfilment by each of the UN member states of its human rights obligations and commitments. This system of review is established to avoid the selectivity and partiality that plagued the Commission; now the human rights

situation in all UN member states is periodically reviewed. The UPR is based on an interactive dialogue with the state under review and aims to ensure universality of coverage and equal treatment. It is a cooperative mechanism that is carried out with due consideration to the capacity building needs of the country in question. The UPR is composed of several steps within a four-year cycle: First, the information for the review is prepared (national reports, a compilation of UN information prepared by the Office of the United Nations High Commissioner for Human Rights (OHCHR), and a summary of stakeholders submissions, also prepared by OHCHR). Secondly, the review itself is conducted by the Working Group on the UPR (composed of all Council members), which meets in three twoweek sessions each year. Third, review outcome documents are considered and adopted by the Council at its regular sessions. Finally, follow-up on how the reviewed states have implemented the UPR outcomes takes place. Stakeholders such as NGOs, academic and research institutions, regional organisations and civil society representatives may participate in some of these steps. It should be noted that the universal review mechanism is intended to complement, not duplicate, the work of treaty bodies. Procedures The Council works in accordance with the rules of procedure established for committees of the General Assembly with certain necessary changes (Article 11 of resolution 60/251). Only members are entitled to vote. The participation of and consultation with observers including states that are not members of the Council, specialised agencies, other intergovernmental organisations, national human rights institutions and NGOs is based on arrangements including ECOSOC resolution 1996/31 of 25 July 1996 and practices observed by the former Commission. Accordingly, countries which are not members of the Council may participate in the Councils deliberations as observers and may be co-sponsors of draft resolutions submitted to the Council. The specialised agencies and several other inter-governmental organisations may make interventions in the Councils sessions. NGOs with consultative status may send observers with the right to address the public sessions of the Council. The debate of the Council is generally open to the public, while the general debate concerning violations of human rights takes place in both open and closed sessions. In open sessions, the Council, inter alia, discusses violations of human rights in any part of the world and adopts resolutions and decisions on them. Closed sessions deal exclusively with individual complaints that reveal a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms. The debate takes place in a confidential manner in the Working Group on Communications and the Working Group on Situations and finally in the Council. Since its formation in March 2006, the Council has adopted several resolutions, decisions and Chairpersons statements related to standard setting, supervision, implementation and promotion of human rights. Activities As opposed to the former Commission, which emphasised standard setting, the Councils principal function is to supervise the implementation of human rights standards in member states of the UN. To accomplish its role in monitoring the implementation of human rights norms, the Council utilises the special procedures, complaints procedure and expert advice mechanisms of the Commission. The Council appoints special rapporteurs, representatives, experts and working groups in order to investigate violations of human rights or make studies on human rights. The appointed persons report in their personal capacity to the Council on human rights topics and make recommendations. The special rapporteurs are divided into two groups: a) country rapporteurs, whose focus is on violations in particular countries, and b) thematic rapporteurs, who deal with particular human rights issues worldwide. The Council also discusses the implementation of human rights in its regular and special sessions. These sessions are the principal forums in which individual countries and NGOs can raise human rights issues. Furthermore, it can order studies on specific issues, such as the rights of detainees. The Council has inherited many of the special rapporteurs and working groups created by the Commission.

4. The Human Rights Council Advisory Committeee The Human Rights Council Advisory Committee is a subsidiary body of the Council. It serves mainly as a think tank, providing expertise focusing on studies and research on thematic issues pertaining to the promotion and protection of human rights. The Advisory Committee can make suggestions to the Council to enhance its own procedural efficiency and to further research proposals within the scope of its work but has no power to adopt resolutions or decisions. The 18 Advisory Committee members serve in their personal capacity for a period of three years and are eligible for The United Nations re-election only once. Membership consists of 5 members from Africa, 5 from Asia, 2 from Eastern European states, 3 from Latin America and Caribbean States and 3 from Western Europe and other states. The Advisory Committee convenes twice each year for a total of up to 10 working days, and can hold additional ad hoc sessions with the Councils approval. The Human Rights Advisory Committee replaced the SubCommission on the Promotion and Protection of Human Rights.

5. The United Nations High Commissioner for Human Rights and the Office of the United Nations High Commissioner for Human Rights (OHCHR) The High Commissioner is the principal UN official with responsibility for human rights and is accountable to the Secretary-General. The position of the High Commissioner for Human Rights was created in 1993. Earlier efforts to establish the post had failed, chiefly because of the East-West block division in UN decision-making bodies, and the fear of a High Commissioner competent to interfere in internal affairs. The Vienna World Conference on Human Rights revived attempts to establish the post, the debate being led by Western states and NGOs such as Amnesty International. After a lengthy process the Conference decided by consensus to ask the UNGA, when examining the Conference report, to begin, as a matter of priority, [with the] consideration of the question of the establishment of a High Commissioner for Human Rights for the promotion and protection of all human rights (Vienna Declaration and Programme of Action). On 20 December 1993, the UNGA decided, without a vote, to create the post of High Commissioner for Human Rights. The High Commissioner for Human Rights has the rank of Under-Secretary-General and reports directly to the Secretary-General. The mandate (UNGA Resolution 48/141) entails, inter alia: a) Promoting and protecting the effective enjoyment by all of all civil, cultural, economic, political and social rights; b) Carrying out the tasks assigned to him/her by bodies of the United Nations system in the field of human rights and making recommendations to them with a view to improving the promotion and protection of all human rights; c) Promoting and protecting the realisation of the right to development and enhancing support from relevant bodies of the United Nations system for this purpose; d) Providing, through the Centre for Human Rights and other appropriate institutions, advisory services, technical, and financial assistance at the request of the state concerned and, where appropriate, the regional human rights organisations, with a view to supporting actions and programmes in the field of human rights; e) Co-ordinating relevant United Nations education and public information programmes in the field of human rights; f) Playing an active role in removing the current obstacles and in meeting the challenges to the full realisation of all human rights and in preventing the continuation of human rights violations throughout the world, as reflected in the Vienna Declaration and Programme of Action; g) Engaging in a dialogue with all Governments on the implementation of his/her mandate with a view to securing respect for all human rights;

h) Enhancing international co-operation for the promotion and protection of all human rights; i) Co-ordination of the human rights promotion and protection activities throughout the United Nations system; j) Rationalisation, adaptation, strengthening and streamlining of the United Nations machinery in the field of human rights with a view to improving its efficiency and effectiveness. [?] The High Commissioner has a special role in the co-ordination of UN activities in the field of human rights, while also co-operating with governments to strengthen national human rights protection. The High Commissioner seeks to lead the international human rights movement by acting as a moral authority and a voice for victims. The High Commissioner makes frequent public statements and appeals on human rights crises. The first High Commissioner was Jose Ayala Lasso from Ecuador. He served from 1994 to 1997, when, after an interim period, in September 1997, the function was taken over by Mary Robinson, the former President of Ireland. The third High Commissioner, Sergio Vieira de Mello, served from 2002 until May of 2003, when he took a leave of absence to serve in Iraq as Special Representative of the SecretaryGeneral. He was tragically killed by a bomb in Baghdad on 19 August 2003. Bertrand Ramcharan acted as High Commissioner from 2003 until February 2004, when Canadian Supreme Court Justice and exprosecutor of the United Nations war crimes tribunals for the former Yugoslavia and Rwanda, Louise Arbour, was appointed to the post. In September 2008 she was succeeded by Navanethem Pillay, from South Africa, a former judge of the International Criminal Tribunal for Rwanda and the International Criminal Court. The Office of the High Commissioner for Human Rights (OHCHR), based in Geneva, is the main body within the UN Secretariat dealing with human rights. In accordance with the programme reform of the UN (A/51/950, para. 79), the Office of the High Commissioner for Human Rights and Centre for Human Rights were consolidated into a single office as of 15 September 1997. The OHCHR assists various UN organs, subsidiary organs and working groups. The Office of the High Commissioner serves as a secretariat for charter-based human rights mechanisms, as well as all treaty monitoring bodies. The Office receives and administers more than 200,000 communications annually. Furthermore, the Office prepares studies, reports and publications on human rights and plays a special role in relation to the Advisory Services Programme, organising global and regional seminars and courses on subjects relating to human rights. Finally, the Office provides governments with technical advice. In addition, a number of OHCHR field offices have been established with a view to ensuring that international human rights standards are progressively implemented and realised at country level, both in law and practice. The OHCHR collaborates with an ever wider range of actors, including governments, NHRIs, NGOs and other civil society actors, to instil as broad a commitment to human rights as possible. It should be noted that, although entrusted with many tasks, the Office of the High Commissioner has very limited funds and manpower at its disposal.

2. International Tribunals International tribunals have traditionally been seen as means to resolving international disputes peacefully, on the basis of international law. The International Court of Justice (ICJ) supervises the rule of law at the international level and is entitled to issue advisory opinions under certain circumstances. States participating in international lawmaking tended to see violations of international law as incurring only state responsibility. Since the 1919 Versailles Treaty, however, it has increasingly been accepted that individuals can be held responsible for violations of international law, especially international humanitarian law. Individual criminal responsibility for crimes against peace, war crimes, and crimes against humanity was established at the

Nuremberg and Tokyo tribunals, where individuals were tried for war crimes committed during the Second World War. In reaction to the atrocities that took place in Yugoslavia and Rwanda, the Security Council established the International Criminal Tribunals for the Former Yugoslavia and Rwanda (ICTY and ICTR) to ensure peace and promote reconciliation by means of prosecution of individuals for genocide, crimes against humanity and war crimes. The ad hoc tribunals are severely limited in their jurisdiction as they are only meant to deal with events that took place within a certain time frame and on specified territory. Partly in response to criticism of the limitations of the ICTY and ICTR, established under Chapter VII of the UN Charter, hybrid or mixed tribunals have been created to seek justice for crimes of mass atrocity. The hybrid model is based on the premise that judicial accountability is shared jointly between the state in which the tribunal functions and the international community. The legal status, applicable law, composition and organisational structure is negotiated and agreed upon by the states in question and the UN. The Special Court for Sierra Leone (SCSL) and the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (ECCC) are examples of hybrid tribunals. The International Criminal Court (ICC) has jurisdiction to investigate, prosecute and punish individuals suspected of having committed the most serious crimes of concern to the international community as a whole. Experience has shown that international tribunals and supervisory mechanisms generally need a long time to develop, to acquire experience and to gain international legitimacy and effectiveness. International Court of Justice (ICJ) The general objective of the International Court of Justice is the administration of justice and the supervision of the rule of law at the international level. The Court, seated at the Peace Palace in The Hague, The Netherlands, is the principal judicial organ of the United Nations. It began work in 1946, when it replaced the Permanent Court of International Justice, and operates under a statute similar to that of its predecessor. The Court has competence to address cases brought by states. Part II. Human Rights Fora The UNGA, ECOSOC, the Security Council and other specific organs may request advisory opinions from it. Individuals cannot bring cases before the court. The ICJ has ruled on several cases involving human rights, e.g., Haya de la Torre (13 June 1951; asylum), Nottebohm (6 April 1955; nationality), Barcelona Traction Light and Power Company (5 February 1970; human rights as obligations erga omnes), Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (31 March 2004; consular protection) and Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia v. Serbia and Montenegro) (26 February 2007; genocide). The Court has also addressed human rights issues in its advisory opinions, for example, on genocide, apartheid and the immunity of UN human rights special rapporteurs. The International Criminal Tribunal for the Former Yugoslavia (ICTY) The International Criminal Tribunal for the Former Yugoslavia was established by Security Council Resolution 827 on 25 May 1993. The Tribunal came into being in the face of the serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991, and as a response to the threat to international peace and security posed by those violations. The purpose of the ICTY is to: a) bring to justice persons allegedly responsible for serious violations of international humanitarian law; b) render justice to the victims; c) deter further crimes; and d) contribute to the restoration of peace by promoting reconciliation in the former Yugoslavia. Such purposes will be achieved by investigating, prosecuting and punishing individuals for the following crimes committed on the territory of the former Yugoslavia since 1991: a) grave breaches of the 1949 Geneva Conventions; b) violations of the laws or customs of war; c) genocide; and d) crimes against humanity.

The ICTY has concurrent jurisdiction with national courts over serious violations of international humanitarian law committed in the former Yugoslavia. In cases where it proves to be in the interests of international justice, the ICTY may claim primacy over national courts and take over national investigations and proceedings at any stage. The ICTY Chambers previously consisted of 16 permanent judges and a maximum of nine ad litem judges. Currently the tribunal is made up of 28 judges from 26 countries. Following the adoption of Security Council resolution 1660 (2006) the tribunals assignment of serving ad litem judges has increased from a maximum of 9 to 12. This allows reserve judges to be assigned to trials to prevent possible delay should more than one of the judges be unable to complete the trial. The permanent judges are elected by the UNGA for a term of four years and can be re-elected. The judges are divided between three Trial Chambers and one Appeals Chamber and represent the main legal systems in the world. They hear testimony and legal arguments, decide on the innocence or the guilt of the accused and pass sentence. Furthermore, they draft and adopt the legal instruments regulating the functioning of the ICTY, such as the Rules of Procedure and Evidence. The Tribunal has its seat in The Hague, The Netherlands. As of March 2010 the Tribunal has indicted a total of 161 persons, proceedings have been concluded against 120 persons and are ongoing for 40 accused. More than 5000 witnesses have testified before the Tribunal. In rendering judgements the Tribunal has set important precedents of international criminal and humanitarian law as many legal issues adjudicated by the Tribunal have never before been addressed legally, or have lain dormant since the Nuremberg and Tokyo trials. International Criminal Tribunal for Rwanda (ICTR) The UN Security Council created the International Criminal Tribunal for Rwanda by Resolution 955 of 8 November 1994 to prosecute persons responsible for genocide and other serious violations The United Nations of international humanitarian law, committed on Rwandan territory between 1 January 1994 and 31 December 1994. The ICTR may also prosecute Rwandan nationals charged with committing such crimes in neighbouring countries during that same period. The purpose of the Tribunal is, inter alia, to contribute to the process of national reconciliation in Rwanda and to the maintenance of peace in the region. The Tribunal consists of the Chambers and the Appeals Chamber, the Office of the Prosecutor and the Registry. The judges of the Tribunal are elected by the UNGA, and should be of different nationalities. Three judges sit in each of the Trial Chambers and seven judges are members of the Appeals Chamber, which is shared with the ICTY. The Office of the Prosecutor is an independent, separate organ that investigates crimes within the Tribunals jurisdiction, prepares charges and prosecutes accused persons. The Registry manages the overall administration of the Tribunal. The Registry is headed by the Registrar who provides judicial and legal support services for the work of the Trial Chambers and the Prosecution. As of March 2010, two individuals, accused of involvement in the Rwandan genocide of 1994 awaited trial, 24 cases were in progress. The Tribunal has convicted 31 individuals, acquitted eight and two cases had been referred to national courts. Decisions on hundreds of motions and different points of law have been given where the Tribunal has laid down important principles of international law which will serve as precedents for other international criminal tribunals. The Akayesu case decided in 1998 was the first in which an international tribunal was called upon to interpret the definition of genocide as laid down in the Convention for the Prevention and Punishment of the Crime of Genocide. The Chamber also defined the crime of rape, underscoring that rape and sexual violence may constitute genocide if committed with the intent to destroy a particular group targeted as such. Jean Kambanda, former Prime Minister of Rwanda, was the first head of government to be convicted for the crime of genocide and in the Media Case the Tribunal issued the first judgement since the Nurnberg trials where the role of the media was examined in the context of international justice.

The Tribunal has advocated victim-orientated, rehabilitative justice by, for instance, providing legal guidance, medical care and psychological counselling to victims. Improved post trial monitoring and protective measures have been implemented within the countries of residence of witnesses, increasing the number of witnesses residing in Rwanda who receive medical and psychological follow up assistance. The Tribunal has its seat in Arusha, United Republic of Tanzania. The International Criminal Court (ICC) On 17 July 1998, a UN Diplomatic Conference adopted the Rome Statute of the International Criminal Court (ICC), establishing a permanent international criminal court with its seat in The Hague, The Netherlands. The idea of a permanent court was set in motion by the unsuccessful attempts to establish an international tribunal after the First World War. Following the Second World War, the Nuremberg and Tokyo war crimes tribunals gave impetus for efforts to create a permanent court. It was first considered at the UN level in the context of the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide (1948). Further developments were effectively forestalled by differences of opinions for many years. Finally, in 1992, the UNGA directed the International Law Commission to elaborate a draft statute for an international criminal court. Further public interest was created by the Security Councils establishment of the International Criminal Tribunals for the Former Yugoslavia in 1993 and for Rwanda in 1994. In December 1994, the UNGA established an Ad Hoc Committee of all UN Member States and members of UN Specialised Agencies to review the final version of the International Law Commissions draft statute. In December 1995, the UNGA created a Preparatory Committee to discuss further the major substantive and administrative issues arising out of the draft statute prepared by the International Law Commission and [...] to draft texts, with a view to preparing a widely acceptable consolidated text of a convention for an international criminal court as a next step towards consideration by a conference of plenipotentiaries. The Preparatory Committee submitted for consideration a 13-part, 116-Article draft statute for the ICC. As it concluded five weeks of deliberations, the Diplomatic Conference adopted the Statute for the Court by a vote of 120 in favour to 7 against, with 21 abstentions. As of March 2010, 110 states are party to the Statute. The Statute establishes the ICC as a permanent institution with power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in the Statute. The jurisdiction of the ICC is of a complementary nature to national criminal jurisdictions. The Statute sets out the Courts jurisdiction, structure and functions. It entered into force on 1 July 2002. Article 5 of the Statute lists the four categories of crimes within the jurisdiction of the Court: genocide, war crimes, crimes against humanity and aggression. The Court shall not, however, exercise jurisdiction over aggression until a provision is adopted under the procedure for amending the Statute defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to it. States parties can bring a situation to the Courts attention as well as the UN Security Council. Furthermore, the Prosecutor can initiate an investigation under propio motu powers. The Court may exercise its jurisdiction over a specific case when either the state in whose territory the crime was committed or the state of the nationality of the accused is a party to the Rome Statute. Nonparty states may also accept the Courts jurisdiction on a case-by-case basis. The Security Council may also refer situations to the Court, whether or not the state concerned is a party to the Statute. The Security Council, acting under Chapter VII of the UN Charter, may prevent the Court from exercising its jurisdiction for one-year periods. As of March 2010, four situations had been referred to the court. Uganda, the Democratic Republic of the Congo and the Central African Republic have referred situations occurring on their territories to the Court, and the Security Council, acting under Chapter VII UN Charter, has referred a situation on the territory of a non-state party (Darfur, Sudan). In the situation in Uganda one case was being heard before Pre-Trial Chamber II. In the situation in the Democratic Republic of the Congo three cases were being heard before the relevant Chambers. In Darfur, Sudan three cases were being heard before Pre-

Trial Chamber I. In the situation in the Central African Republic one case was being heard before PreTrial Chamber II.

3. Functional United Nations Commissions The Commission on the Status of Women The Commission on the Status of Women (CSW) was established by ECOSOC Resolution 11(II) in 1946. It is the main UN organ dealing with womens issues. Its mandate is to prepare reports for the ECOSOC on matters concerning the promotion of womens rights in the political, economic, social and educational fields. The CSW may also make recommendations to the ECOSOC on problems requiring immediate attention in the field of womens rights. The CSW is the forum for evaluation of the implementation of the 1995 Beijing Fourth World Conference on Women. The Commission functioned as the Preparatory Committee for the World Conferences on Women, which took place in Mexico (1975), Copenhagen (1980), Nairobi (1985) and Beijing (1995). The Commission membership consists of 45 states elected by the ECOSOC for a period of four years The United Nations on a regional basis ensuring equitable geographical distribution. The Commission meets annually for a period of eight days in New York. Mention should be made of the Division for the Advancement of Women (DAW), part of the Division for Social Policy and Development, the focal point for all activities relating to women. Its programmes relate particularly to monitoring the Forward-Looking Strategies developed during the World Conferences. The DAW acts as a secretariat for the CSW (see II1.C). The DAW also undertakes and co-ordinates research; expert group meetings and advisory seminars, particularly on priority themes selected by each CSW session. The Commission for Social Development The Commission for Social Development is another functional commission of the ECOSOC. It was originally created in 1964, but its terms of reference were later redefined, when the number of members was increased to 32. In 1996 the membership was expanded again, to 46 members. The Commission advises the ECOSOC on issues of ocial welfare and the most vulnerable groups in society. It is particularly active in areas lying outside the field of work of the UN Specialised Agencies and seeks to pursue an integrated approach to social and economic development, based on social justice and the distribution of power, responsibility and prosperity among all sections of society. The Declaration on Social Progress and Development, which was approved by the UNGA in 1969, has proved a significant aid to the Commissions programme of work. The Commission on Crime Prevention and Criminal Justice Another commission, established by the ECOSOC in 1992, is the Commission on Crime Prevention and Criminal Justice (Crime Commission). The Commissions main duties lie in the field of international cooperation on penitentiary and criminal matters, such as penal justice and crime prevention. Promoting respect for human rights also forms a substantial element in the work programme of the Commission (UNGA Resolution 46/152). The Commission meets annually for a period of ten days in Vienna. The Crime Commission plays an important role in preparing the conferences held every five years by the UN on preventing crime and the treatment of delinquents. Its work, therefore, sometimes spills over into the field of human rights. For example, the first conference (1955) drew up Standard Minimum Rules for the Treatment of Prisoners, while the fifth conference (1975) prepared the text for a Declaration on the Protection of All Persons against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Declaration was approved in the same year by the UNGA. The International Law Commission The International Law Commission (ILC), established by the UNGA in 1947 by Resolution 174(III), is mandated to promote the development and codification of international law. It drafts conventions for areas in which international law has not been developed or has been insufficiently developed, or

introduces necessary improvements. The Commission is made up of 34 individuals not being representatives of their governments who have a proven track record in the field of international law. They are elected by the UNGA for a period of five years from a list of candidates nominated by the UN member states. As far as human rights are concerned, the Commission is involved, among other things, in preparing international agreements on the problems of nationality and statelessness. The Commission also spends much time developing international criminal law. Notable recent activities relate to the adoption of the Statute for the International Criminal Court (1994) and the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (2001).

Standards and supervisory mechanisms The UN plays a pre-eminent role in the field of standard-setting. The former UN Commission on Human Rights often took the initiative of drafting of human rights standards, frequently in co-operation with the Sub-Commission. Sometimes specific working groups or drafting groups are mandated. It is important to realise that elements for new instruments are often taken from proposals by one country, from final documents of colloquia and round table meetings, and especially from submissions by NGOs. The process has not been standardised. It has become accepted to submit texts for technical review by individual experts or expert bodies. In addition, texts are often submitted to governments after a first reading for comments, after which, in a second reading procedure, outstanding issues are tackled. The drafting of texts can be a very taxing effort, not guaranteeing a flawless process. It took, for example, more than fifteen years to draft the ICCPR and the ICESCR, while one of the latest conventions the Convention on the Rights of Persons with Disabilities (CRPD) was negotiated during eight sessions of an Ad Hoc Committee of the General Assembly from 2002 to 2006, making it the fastest negotiated human rights treaty in history. Guidelines for drafting may be found in UNGA Resolution 41/120, which stipulates that only clear, meaningful, consistent proposals, commanding large support, should be considered. The CSW and the Crime Commission are also involved in standard-setting within their areas of competence. The CSW drafted, for instance, the Optional Protocol to CEDAW. To supervise compliance with the standards formulated, a wide range of mechanisms has been established in the UN system in the past fifty years. In the overview that follows, the distinction is made between treaty-based procedures, such as the Human Rights Committee, and charter-based procedures, such as the appointment of special rapporteurs (see I.??6). Before discussing the treaties, mention must be made of the Universal Declaration of Human Rights, which, together with the Covenants, forms the Universal Bill of Human Rights (see I??1.A) and is considered the major human rights standard, although, as a declaration, it is not accompanied by a specific supervisory procedure. 1. Treaties and Treaty-Based Procedures The seven major UN human rights treaties are the two Covenants (ICESCR and ICCPR), CERD, CEDAW, CAT, CRC and CRPD. In addition, mention should be made of the CMW, which entered into force in 2003 and the Convention for the Protection of All Persons from Enforced Disappearances (not yet in force in March 2010). Each of these treaties has a supervisory body. These bodies consist of experts of high moral character and recognised competence in the field of human rights. They act in their personal capacity, which means that although they are normally nationals of a state party to the treaty in question, they are not acting under instructions from the respective governments. The treaty-based procedures are the mechanisms established within the context of a specific human rights treaty. CERD (1965) was the first human rights treaty of universal application to provide for a mechanism of supervision. This mechanism subsequently served as a model for other human rights treaties, notably ICCPR. The treaty bodies, with the exception of the Committee on Economic, Social and Cultural Rights, derive their status from the treaty concerned. To implement these treaties, regular meetings of states The United Nations parties are held to discuss issues regarding the treaties, mainly in connection with the election of members to the treaty bodies. As mentioned in Part I, there are different types of supervisory procedures: reporting procedures, inter-state complaint procedures, individual complaint procedures and inquiry procedures. The ICESCR and the Committee on Economic, Social and Cultural Rights The International Covenant on Economic, Social and Cultural Rights (ICESCR) was adopted by UNGA Resolution 2200 A (XXI) of 16 December 1966. It entered into force 3 January 1976. In March 2010, 160 states were party to the Covenant. The Preamble of the Covenant recognises, inter alia, that economic, social and cultural rights derive from the inherent dignity of the human person and that the ideal of free human beings enjoying

freedom of fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as civil and political rights. The Covenant recognises the right to work (Article 6); the right to just and favourable conditions of work (Article 7); the right to form and join trade unions and the right to strike (Article 8); the right to social security including social insurance (Article 9); the right to protection and assistance for the family and the prohibition of child labour (Article 10); the right to an adequate standard of living for oneself and ones family, including adequate food, clothing and housing, and to the continuous improvement of living conditions (Article 11); the right to the highest attainable standard of physical and mental health (Article 12); the right to education, the freedom of parents to choose schools other than those established by public authorities (Articles 13 and 14) and the right to take part in cultural life and to benefit from scientific progress (Article 15). The supervisory body of the ICESCR is the Committee on Economic, Social and Cultural Rights. The Committee is a supervisory body of the ECOSOC, which is responsible for monitoring implementation of the Covenant. Originally, the ECOSOC had delegated this work to a working group of government experts. In 1985, however, the ECOSOC decided to convert the working group into a Committee on Economic, Social and Cultural Rights. The Committee is made up of 18 experts acting in their personal capacity. The election of members takes place in the ECOSOC by means of a secret ballot based on a list of candidates put forward by the states parties to the Covenant. Even members of ECOSOC that are not parties to the Covenant can vote. Members of the Committee are elected for a period of four years and may stand for re-election. The Committee normally meets twice each year in Geneva, for three weeks at a time. Meetings are held in public. The Committee reports to the ECOSOC and may also make recommendations. The Committee formally took up its duties on 1 January 1987. The original supervisory mechanism envisaged in the ICESCR is the reporting procedure (see I6.A). States that are party to the Covenant are required to submit reports about the realisation of the rights recognised in the Covenant to the UN Secretary-General, who transmits them to the ECOSOC (Articles 16 to 21 ICESCR). The Committee on Economic, Social and Cultural Rights is responsible for studying the reports. Reporting is based on a five-year cycle whereby all articles have to be dealt with. The question of adopting an Optional Protocol to the ICESCR providing for a system of individual and collective complaints such as that in place as for violations of civil and political rights was under consideration by the international community for decades. Finally, in June 2008, the text of an Optional Protocol was adopted by the Human Rights Council, subsequently adopted by the UNGA on 10 December 2008, on the 60th Anniversary of the Universal Declaration of Human Rights. The Optional Protocol provides for the following supervisory mechanisms: a) inter-state complaint procedure (Article 10); b) individual and collective complaints mechanism (Articles 1 and 2); and c) inquiry procedure (Article 11). As of March 2010, the Committee has adopted 19 General Comments (see I??1.C). The ICCPR and the Human Rights Committee The International Covenant on Civil and Political Rights (ICCPR) was adopted by UNGA Resolution 2200 A (XXI) of 16 December 1966. It entered into force 23 March 1976. As of March 2010, 165 states were party to the Covenant and a further nine signatories were pending ratification. Part I of the Covenant contains only one article, Article 1, the right to self-determination, which is identical to Article 1 ICESCR. Part II of the Covenant contains Articles 2 to 5, which refer to the nature of obligations, the territorial and personal scope of the Covenant and the principle of non-discrimination (Article 2) which is complemented by Article 3, guaranteeing the equality between men and women in the enjoyment of the Covenant rights. Article 4 allows states to take measures derogating from their obligations under the Covenant and Article 5 establishes a prohibition of abuse of rights (Article 5(1)) and a saving clause (Article 5(2)). Part III of the Covenant contains the following substantive rights: the right to life (Article 6); freedom from torture, inhuman and degrading treatment or punishment (Article 7); freedom from slavery, servitude and forced labour (Article 8); rights to liberty and security of the person (Article 9); right of detained persons to humane treatment (Article 10); freedom from imprisonment for inability to fulfil a contract (Article 11); freedom of movement (Article 12); right of

aliens to due process when expelled (Article 13); right to a fair trial (Article 14); freedom from retroactive criminal law (Article 15); right to recognition as a person before the law (Article 16); right to privacy (Article 17); freedom of thought, conscience, and religion (Article 18); freedom of opinion and expression (Article 19); freedom from war propaganda and freedom from incitement to racial, religious or national hatred (Article 20); freedom of assembly (Article 21); freedom of association (Article 22); right of protection of the family and the right to marry (Article 23); right of protection of the child (Article 24); right of participation in public life (Article 25); right to equality before the law and right of non-discrimination (Article 26); and rights of minorities (Article 27). The supervisory mechanism established in the ICCPR is the Human Rights Committee, which should not be confused with the Human Rights Council. The Committee is an organ established under Article 28 ICCPR. It is made up of 18 experts who are elected by the states parties to the Covenant in their personal capacity for a period of four years. The Committee meets three times a year, each time for three weeks (once in New York and twice in Geneva). The Committee is responsible for supervising compliance with the Covenant. The following supervisory mechanisms exist under the ICCPR and its First Optional Protocol:

a) Reporting mechanism (Article 40). All states parties to the Covenant must submit a report one year after the Covenant has come into effect for them, describing the measures which they have taken to implement the rights recognised in the Covenant and the progress made in the enjoyment of those rights. In addition, the Committee has established that each state party has to submit a report every five years.

b) Inter-state complaint procedure (Articles 41 to 43). The procedure is optional. No party to the Covenant has made use of the procedure so far, partly because most countries that systematically violate human rights have not recognised the competence of the Committee in this respect, and partly because of the political nature of the procedure.

c) Individual complaints mechanism (set out in the First Optional Protocol to the ICCPR). This complaints procedure may only be invoked if the state concerned is a party to the Pro- The United Nations 103 Umbroti FYRIR GURNU - Nota_Layout 1 8.4.2010 11:19 Page 103 tocol (as of December 2008, 111 states had ratified it). The main aspects of the procedure are regulated in Articles 2 to 5 of the Protocol, which, inter alia, provides that the Committee will make its findings (called views) known to the state concerned and to the complainant (Article 5(4)). The Committee has given its views on more than fifteen hundred individual cases. The views are published in a form that has many of the characteristics of a judgement and may be regarded as case-law of the Committee. In 1990, the Committee created the function of Special Rapporteur for the Follow-Up of Views. In 1995, the Committee approved a follow-up fact-finding mechanism, which was first used during a mission to Jamaica in 1995. The Committee has a solid and respectable record in examining country reports and individual complaints. When a country report is being considered, representatives of the state concerned get a chance to explain the report at a public session. Members of the Committee then have an opportunity to question the representatives, which they sometimes do in a forceful and critical manner. Over the years, NGOs have begun to play a substantive role in the procedure. In addition, the ICCPR stipulates that the Committee may formulate General Comments on the reports it has considered (Article 40(4)). The Committee has made highly creative use of these powers by publishing a series of General Comments over the years, which include an authoritative explanation and elaboration of various material provisions of the Covenant. As of February 2009, 33 General Comments have been adopted that relate to the experience gained regarding the provisions of the Covenant. The CERD and the Committee for the Elimination of Racial Discrimination The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) was adopted by UNGA Resolution 2106 A (XX) of 21 December 1965. It entered into force on 4 January 1969. As of February 2009, 173 states were party to the Convention.

The CERD contains a number of detailed prohibitions and obligations to prevent discrimination on the grounds of race, colour, origin and national or ethnic background. The Convention particularly condemns racial segregation and apartheid (Article 3) and propaganda and promotion of discrimination are prohibited (Article 4). Furthermore, non-discrimination in relation to specific rights, such as the right to equal treatment before tribunals, the right to marriage, the right to housing and freedom of opinion and expression are set out (Article 5). Finally, states parties shall assure effective protection and remedies against acts of racial discrimination (Article 6) and states pledge to combat prejudices that lead to racial discrimination (Article 7). The Convention provides for a Committee on the Elimination of Racial Discrimination (Article 8), consisting of 18 experts elected in their personal capacity by states parties to the Convention for a period of four years. The Committee is the only committee where states parties bear the costs; this can be problematic, as it has occurred that a session has been cancelled because of lack of funds. The Committee meets twice each year for three weeks in Geneva. The supervisory mechanisms envisaged by the CERD are the following:

a) Reporting mechanism (Article 9). The Committee will consider the reports that the states submit to the UN Secretary-General on the legislative, judicial, administrative or other measures that they have adopted and that give effect to the provisions of the Convention. These reports have to be submitted one year after entry into force of the Convention for the state concerned, and, thereafter, every four years or whenever the Committee so requests. The Committee is also entitled to request further information from the states. The Committee reports on its activities annually to the UNGA, through the Secretary General, and may make suggestions and general recommendations based on the examination of the reports and information received. The system of reporting has developed into the most important monitoring procedure under the CERD. Over the years, NGOs started to play a significant role in the procedure.

b) Inter-state complaint mechanism (Article 11). If a state party considers that another state party is not giving effect to the provisions of the Convention, it may bring the matter to the attention of the Committee. The Committee will transmit the communication to the state concerned. Within three months, the receiving state shall submit to the Committee a written explanation or statement clarifying the matter and the remedy, if any, adopted by that state. Articles 12 and 13 refer to an ad hoc Conciliation Commission, which the chairman of the Committee shall appoint once the Committee has obtained and collated all the information it thinks necessary in the dispute. The good offices of the Conciliation Commission shall be made available to the states concerned with a view to an amicable resolution of the matter, on the basis of respect for the Convention. So far, there have been no interstate complaints and, thus, the conciliation procedure has never become operative.

c) Individual complaints mechanism (Article 14). The Article recognises the right of petition (communications) by individuals or groups of individuals on an optio-nal basis. Around 40 states have opted in. By December 2008, the Committee has reviewed and made recommendations in 43 cases. If the state party concerned has recognised the right to petition, a (group of) individual(s) have the right to communicate a matter to the Committee, within six months of the exhaustion of all local remedies. The Committee will bring the communication to the attention of the state accused. The state will have three months to submit written explanations to the Committee. The Committee must forward its suggestions and recommendations, if any, to the state concerned and the petitioner. As of March 2010, the Committee has published 33 General Recommendations.

The CEDAW and the Committee for the Elimination of Discrimination against Women The Convention on the Elimination of All forms of Discrimination against Women (CEDAW) was adopted by UNGA Resolution 34/180 of 18 December 1979. It entered into force 3 September 1981. As of March 2010, 186 states were party to the Convention, many with a considerable number of reservations that have significantly undermined the effectiveness of the Convention.

Part I of the Convention contains general standards. Article 2 and 3 set out different measures that states undertake to eliminate discrimination against women and to ensure their full development and advancement. These measures include the adoption of appropriate legislative measures and refraining from engaging in any acts of discrimination against women. Article 4 sets out that affirmative action and measures aimed at protecting maternity will not be considered discriminatory, and Article 5 stipulates that states shall take all appropriate measures to modify cultural patterns that perpetuate discrimination, and ensure that family education includes an understanding of maternity as a social function. Finally, states undertake to suppress trafficking and exploitation of prostitution of women (Article 6). Part II sets out that states must take measures to eliminate discrimination as regards certain fields. States must ensure to women on equal terms with men, inter alia: the right to participation in political and public life (Article 7); the opportunity to represent their governments internationally (Article 8); and the right to change and retain their and their childrens nationality (Article 9). Part III of the Convention sets out that states must take appropriate measures to eliminate discrimination in regard to certain social and economic issues: education (Article 10); work, including on the grounds of marriage and maternity (Article 11); health (Article 12); and the right to benefits and loans and to participate in cultural life (Article 13). The particular problems faced by rural women and measures that states undertake to eliminate discrimination against this group are also contemplated (Article 14). Part IV establishes equality before the law (Article 15) and that states must undertake measures to eliminate discrimination in relation to marriage and family relations (Article16). Under Article 17 of the Convention, the Committee for the Elimination of Discrimination against Women (CEDAW Committee) is responsible for supervising international compliance with the Convention. The Committee is composed of 23 experts (lawyers, teachers, diplomats and experts on womens affairs), acting in their individual capacity. The members are elected for a period of four years by the states parties to the Convention. The CEDAW Committee maintains close contact with the other Committees set up under the terms of UN human rights conventions, with the UN Specialised Agencies and the CSW. Under the Convention itself the only supervisory mechanism established is the reporting system. In accordance with Article 18, each state party is required to report to the CEDAW Committee on the measures taken to comply with the Convention within one year of its becoming a party. Subsequently, every four years a periodic report is due. Although the responsibility for drafting the reports lies with the government, NGOs can also be involved in order to produce as complete a picture of the situation in the country as possible. On 6 October 1999, the UNGA adopted an Optional Protocol to CEDAW. The Optional Protocol entered into force on 22 December 2000. In March 2010, 99 states were parties to the Optional Protocol. The Optional Protocol contains two additional supervisory mechanisms:

a) Individual complaints mechanism (Article 1). This procedure allows individual women, or groups of women, to submit claims of violations of rights protected under the Convention to the Committee. The Protocol establishes that in order for individual communications to be admitted for consideration by the Committee, a number of criteria must be met, including that all domestic remedies must have been exhausted. The entry into force of the Optional Protocol has put it on an equal footing with ICCPR, CERD and CAT, which all have individual complaints procedures. As of January 2010, the Committee has heard five cases.

b) Inquiry procedure (Article 8). The Protocol sets out a unique inquiry procedure that enables the Committee to initiate inquiries into situations of grave or systematic violation of womens rights and carry out country visits. The Protocol includes an opt-out clause, allowing states upon ratification or accession to declare that they do not accept the inquiry procedure. This inquiry procedure is similar to that established in CAT. As of February 2010, the Committee has issued 33 General Recommendations.

The CAT and the Committee against Torture

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) was adopted by UNGA Resolution 39/46 of 10 December 1984. It entered into force 26 June 1987. As of March 2010, 146 states were parties to the Convention. In the Preamble to the Convention, states express their desire to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world. To this end, states parties undertake to establish effective legislative or other measures to prevent acts of torture and establish that neither a state of emergency nor superior orders can be invoked as justification for torture (Article 2). States undertake to ensure that acts of torture are punishable under criminal law (Article 4) and expulsion or refoulement is prohibited when there is danger that torture will be inflicted (Article 3). States parties must establish jurisdiction over offences of torture committed by their nationals, on their territory or against their nationals and universal jurisdiction is set out requiring states to establish jurisdiction in cases where the offender is on their territory or under their jurisdiction and they do not extradite (Article 5). States parties undertake to take alleged offenders into custody, carry out inquiries, prosecute and extradite (Articles 6, 7 and 8) and they pledge cooperation (Article 9). Article 10 sets out that states must ensure that education on the prohibition of torture is provided to law enforcement personnel and others involved with the treatment of individuals deprived of their liberty. States must take preventive measures, such as reviewing rules of interrogation (Article 11), prompt and impartial investigation must be carried out (Article 12) and states must ensure remedy, redress, and reparation to victims of torture (Articles 13 and 14). Finally, Article 15 sets out that statements made as a result of torture may not be invoked as evidence in any proceedings. Under Article 17 CAT, a Committee of ten independent experts is made responsible for supervising compliance with the Convention. The experts are elected for a period of four years by the parties to the Convention. Their election takes account of equitable geographic distribution. The Committee was established on 26 November 1987, and meets twice a year for two weeks in Geneva. The CAT supervisory mechanisms are the following:

a) Reporting mechanism (Article 19). Within one year after the Convention has come into effect for the state concerned, its government must submit a written report to the Committee describing the measures it has taken to implement its obligations under the Convention. It must submit supplementary reports every four years concerning new measures that have been taken and any other reports requested by the Committee. The Committee may include General Comments on the country reports in its annual report to the UNGA and to the states parties to the Convention. The governments concerned may respond to the comments with their own observations (Article 19(3)).

b) Inter-state complaint mechanism (Article 21). The Committee may deal with communications submitted by a state party to the Convention whereby non-compliance with obligations under the Convention by another state party to the Convention is claimed. It is an optional procedure: it may be only instituted if both states concerned have made a declaration recognising, in regard to itself, the competence of the Committee.

c) Individual complaints procedure (Article 22). The Article contains provisions to deal with complaints submitted by individuals. For this procedure, the state party to the Convention against which the complaints are being made must have recognised the right to complain in advance. The procedures have the same features as those of the ICCPR and its First Optional Protocol. As of December 2008, more than 150 cases have been decided.

d) Inquiry procedure (Article 20). If the Committee receives reliable information that suggests wellfounded indications that torture is being systematically practised in a state that is a party to the Convention, it may appoint one or more of its members to undertake a confidential investigation. It may visit the country in question with the consent of its government. The Committee sends its findings to the government with its comments or proposals. The Committees work during the investigation stage is confidential. On the other hand, the Committee may decide to include a brief report of the results of its work in its annual report, on completion of an investigation. This sanction could give weight to the

Committees position in its dealings with the government concerned. However, a state that is party to the Convention may refuse to accept application of Article 20. In addition to its supervisory mandate, the Committee has drafted an Optional Protocol to the Convention (OPCAT). The Protocol, which entered into force in 2006, establishes a unique two pillar visiting mechanism both international and national to prevent torture in all places where persons are deprived of liberty. Under the OPCAT the Subcommittee on Prevention, composed of international experts, conducts periodic visits to all places where persons are deprived of liberty (such as prisons, police stations, psychiatric institutions and juvenile or migrant centres) in the states parties to the Protocol. The Subcommittee is complemented by National Preventive Mechanisms (NPMs) that also undertake regular visits to places of detention and should be able to carry out more thorough visits than the Subcommittee in light of local knowledge and the potential for more effective follow-up. The Subcommittee and the NPMs should build a constructive dialogue with the authorities and provide recommendations on effective measures to be taken in order to prevent torture and ill-treatment. The CRC and the Committee on the Rights of the Child The Convention on the Rights of the Child (CRC) was adopted by UNGA Resolution 44/25 on 20 November 1989. It entered into force on 20 September 1990. This treaty is the human rights treaty with the most parties; as of March 2010, 193 states were parties to the Convention. Under the CRC, a child is any person below the age of 18, unless, under applicable laws, majority is attained earlier (Article 1). The Convention sets out the principle of non-discrimination (Article 2) and that the best interest of the child should be a primary consideration in all actions concerning children (Article 3). States must undertake measures to implement the rights in the Convention (Article 4) and respect the rights and duties of parents or extended family to give appropriate guidance and direction in the exercise by the child of the rights in the Convention (Article 5). The Convention sets out civil and political rights as well as economic, social and cultural rights: the right to life (Article 6); the right to a name and nationality (Article 7); the right to preserve ones identity (Article 8); the freedom of expression, opinion, thought, conscience and religion (Articles 12, 13 and 14); freedom of association and assembly (Article 15); the right to privacy (Article 16); the right to receive information (Article 17); the right to health (Article 24); the right to benefit from social security (Article 26); the right to an adequate standard of living (Article 27); the right to education (Article 28); the right of rest and leisure and to participate in cultural life (Article 31); freedom from torture (Article 37); and the right to due process (Article 40). The Convention also contains provisions prohibiting separation from parents except in exceptional circumstances (Article 9) and the obligation of states parties to aid family reunification (Article 10). States parties undertake to take special measures: to combat illicit transfer and non-return of children abroad (Article 11); to protect children from abuse or neglect, and afford special protection if they are deprived of their families (Articles 19 and 20); to ensure that, in systems of adoption, the best interest of the child is paramount (Article 21); to protect children from economic exploitation and hazardous work (Article 32); to protect children from sexual exploitation and abuse (Article 34); to protect children from drug abuse (Article 33); to prevent trafficking in children and all exploitation (Articles 35 and 36); to ensure that children under 15 do not take part in armed conflict (Article 38); and to provide rehabilitative care to children that need it (Article 39). In addition, special protection is set out for particular groups, such as refugee children, handicapped and disabled children and minority and indigenous children (Articles 22, 23 and 30). Article 43 of the CRC establishes a Committee on the Rights of the Child. The Committee held its first meeting in October 1991. The Committee was originally composed of ten experts, but currently consists of 18 experts elected for a four-year term. The election takes geographical distribution as well as principal legal systems into account. The Committee meets three times a year in Geneva, each time for three weeks. Its task is the supervision of the implementation of the CRC, mainly through a reporting mechanism. The only supervisory mechanism established by the CRC is the reporting system under Article 44 CRC. The initial report is to be submitted within two years after the entry into force of the Convention for the

state party concerned, and thereafter every five years. The Committee reports every two years to the UNGA and may submit suggestions and general recommendations to it. At its first session, the Committee formulated general guidelines regarding the form and content of initial reports (see UN Doc. A/47/41). This report must include, inter alia, the definition of a child under national law, application of general principles, and paragraphs on family environment and alternative care, basic health, education and special protection measures. On 25 May 2000, two additional Optional Protocols to the Convention were adopted; on the Involvement of Children in Armed Conflict and on the Sale of Children, Child Prostitution and Child Pornography. The Optional Protocol on the Involvement of Children in Armed Conflict entered into force on 12 February 2002. As of February 2009, 127 states were parties to the Protocol. The Protocol prohibits governments and other groups from recruiting people under the age of 18 to the armed forces. It requires that countries raise the minimum recruiting age above the age set by the CRC; do everything possible to keep people under the age of 18 from direct participation in hostilities; take precautions against the voluntary recruitment of people under the age of 18; and report to the CRC Committee on their compliance with the provisions of the Convention and the Protocol. The Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography entered into force on 18 January 2002. As of February 2009, 130 states were parties to the Protocol. It supplements the Convention with detailed requirements for criminalising violations of childrens rights in relation to the sale of children, child prostitution and child pornography. The Protocol defines the offences sale of children, child prostitution and child pornography. It sets standards for treating violations under domestic law, not only as they relate to offenders, but also as regards preventive efforts and the protection of victims. It also gives a framework for increased international co-operation in these areas, in particular for prosecuting offenders (see IV2). . charter-based procedures Charter bodies, human rights bodies which are not established by a specific human rights treaty, include the former Commission on Human Rights, the Human Rights Council and Special Procedures. These bodies were established by resolutions of the Economic and Social Council (ECOSOC) or the UNGA and, therefore, are ultimately based on the Charter of the United Nations. From its inception the United Nations received complaints of human rights violations from individuals, groups and NGOs but in its early years the organisation was not empowered to deal with such complaints. In 1959, the Economic and Social Council adopted a resolution (Resolution 728 F (XXVIII) of 30 July 1959) requesting the UN Secretary-General to compile and distribute two lists to the Commission on Human Rights: the first a non-confidential list of all communications received dealing with the general human rights principles; and a second confidential list, furnished in private meeting, giving a brief indication of the substance of other communications. A particular state referred to in such a communication was to receive a copy of it and requested to reply to it, if it wished to do so. From a victims perspective, however, this procedure produced limited relief. The ECOSOC resolution only requested the Secretary-General to inform the writers of all communications concerning human rights that their communications will be handled in accordance with this resolution, indicating that the Commission has no power to take any action in regard to any complaints concerning human rights. In the 1960s the attitude of the United Nations and its member states changed significantly, in part due to the repressive Apartheid regime in South Africa. In 1966, the General Assembly invited the ECOSOC to give urgent consideration to ways and means of improving the capacity of the United Nations to put a stop to human rights violations wherever they might occur. ECOSOC Resolution 1235 (XLII) of 6 June 1967 authorised the UN Commission on Human Rights and its Sub-Commission to study consistent patterns of human rights violations and to investigate gross violations of human rights. In practice, the 1235 procedure evolved into an annual public debate on human rights violations anywhere in the world. In addition to government representatives, NGOs played a very important role by providing important information on human rights situations and actively taking part in the discussions. Towards the end of the 1970s and the beginning of the 1980s the UN Commission on Human Rights gradually developed a

practice of appointing special rapporteurs, special representatives, experts, working groups and other envoys competent to study human rights violations in specific countries or violations of specific rights worldwide. These special experts and working groups have become known as country procedures and thematic procedures. The Human Rights Council has assumed most mechanisms, including the Special Procedures and the 1503 procedure, previously entrusted to the Human Rights Commission. These will be discussed below as well as new mechanisms established under the Council. Human Rights Council Complaint Procedure 1503 procedure ECOSOC Resolution 1503 (XLVIII) of 27 May 1970 came into being after a lengthy period of preparation by the ECOSOC and the former UN Commission on Human Rights. The resolution created a confidential procedure to deal with communications on violations of human rights. Only communications indicating a consistent pattern of serious and reliably documented violations of human rights qualified for consideration; other communications or copies of 1503 communications were referred to other procedures if the Secretariat considered it warranted. The 1503 procedure was not primarily intended to provide satisfaction for individual complainants, but rather to take action in respect of systematic violations of human rights designated as a situation. In 2006 the newly established Human Rights Council created a Working Group to formulate recommendations on the issue of reviewing and, when necessary, improving and rationalising all mandates, mechanisms, functions and responsibilities of the former Commission on Human Rights, including the 1503 procedure. The revised 1503 procedure aims to address consistent patterns of gross and reliably attested violations of all human rights and all fundamental freedoms occurring in any part of the world and under any circumstances. The procedure is victim-orientated but retains its confidential nature to enhance cooperation with the state concerned. The Working Group on Communications and the Working Group on Situations examine the communications and bring consistent patterns of gross and reliably attested human rights violations to the attention of the Human Rights Council. Manifestly illfounded and anonymous communications are screened out by the Chairperson of the Working Group on Communications, together with the Secretariat. Communications not rejected in the initial screening are transmitted to the state concerned to obtain its views on the allegations of violations. The Working Group on Communications is designated by the Human Rights Council Advisory Committee (see below) from among its members for a period of three years (mandate renewable once). It consists of five independent experts and is geographically representative of the five regional groups. The Working Group meets twice a year for five days to assess the admissibility and the merits of a communication, including whether the communication alone or in combination with other communications, appears to reveal a consistent pattern of gross violations of human rights. All admissible communications and recommendations thereon are transmitted to the Working Group on Situations. The Working Group on Situations comprises five members appointed by the regional groups from among the members of the Human Rights Council for a period of one year (mandate renewable once). It meets twice a year for a period of five working days in order to examine the communications transferred to it by the Working Group on Communications, including the replies of states, as well as the situations which the Council is already seized of under the complaint procedure. The Working Group on Situations presents the Human Rights Council with a report on consistent patterns of gross and reliably attested violations of human rights and fundamental freedoms and makes recommendations to the Council on the course of action to take. Subsequently, it is for the Human Rights Council to respond to each situation brought to its attention in this manner.

Special Procedures; the mandates of special rapporteurs, representatives, experts and working groups Special Procedures is the general name given to the mechanisms established by the former Commission on Human Rights and assumed by the Human Rights Council to address either specific country situations

or thematic issues in all parts of the world. Currently, there are thirty thematic and eight country mandates. The mandates given to special rapporteurs, special representatives, experts and working groups are either to examine, monitor and publicly report on human rights situations in specific countries or territories (known as country mechanisms or mandates) or on major phenomena of human rights violations in various parts of the world (known as thematic mechanisms or mandates). In carrying out their mandates, special rapporteurs and other mandate-holders routinely undertake country missions and report back to the Human Rights Council. These missions take place at the invitation of the country concerned. The Special Procedures mandate-holders are free to use all reliable sources available to them to prepare their reports, and much of their research is done in the field, where they conduct interviews with authorities, NGOs and victims, gathering on-site evidence whenever possible. The mandate-holders report annually to the Human Rights Council, with recommendations for action. Their findings are used as background material for the Universal Periodic Review (see below) and also by the treaty bodies in their work, especially in evaluating state reports. The Special Procedures are often the only mechanism that will alert the international community on certain human rights issues. The Office of the High Commissioner for Human Rights provides the Special Procedures with personnel and logistical and research assistance to support them in the discharge of their mandates. Two expert bodies have been established as an addition to the traditional Special Procedures. One is the Forum on Minority Issues which will provide a platform for promoting dialogue and cooperation on issues pertaining to national or ethnic, religious and linguistic minorities and provide thematic contributions and expertise to the work of the independent expert on minority issues. The other, the Expert Mechanism on the Rights of Indigenous Peoples, has been created by the Human Rights Council to continue the work of the Working Group on Indigenous Populations. Composed of five experts, the mechanism will provide thematic expertise on the rights of indigenous peoples to the Human Rights Council; it will focus mainly on studies and research-based advice but may suggest proposals to the Council for its considerations and approval, within the scope of its work as set out by the Council.

SPECIAL PROCEDURES OF THE HUMAN RIGHTS COUNCIL MANDATE HOLDERS 2009

Special Rapporteur on adequate housing as a component of the right to an adequate standard of living Working Group on people of African descent Working Group on Arbitrary Detention Independent Expert on the situation of human rights in Burundi Special Rapporteur on the situation of human rights in Cambodia Special Rapporteur on the sale of children, child prostitution and child pornography Special Rapporteur on the situation of human rights in the Democratic Peoples Republic of Korea ?Special Rapporteur on the right to education Universal Periodic Review The Universal Periodic Review (UPR) involves a review of the human rights records of all 192 UN member states once every four years. State reviews are conducted by the UPR Working Group which consists of the members of the Human Rights Council. Other UN member states can take part in the discussion/dialogue. Each review is assisted by groups of three states, known as troikas, who serve as rapporteurs. The selection of the troikas for each state review is done through a drawing of lots prior to each Working Group session. Reviews are based on information provided by the state under review, such as national reports, reports of the Special Procedures, human rights treaty bodies, and other UN entities and information from other stakeholders such as NGOs and national human rights institutions.

Following the state review by the Working Group a report is prepared by the troika with the involvement of the state under review and assistance from the OHCHR. This report, referred to as the outcome report, provides a summary of the actual discussion, questions and recommendations as well as the reviewed states responses. The outcome report forms the basis for recommendations to the reviewed state which has the primary responsibility to implement them. When a state comes up for a second review it must provide information on what has been done to implement earlier recommendations. The international community will assist in implementing the recommendations and conclusions regarding capacity-building and technical assistance, in consultation with the country concerned. If necessary, the Human Rights Council will address cases where states are not cooperating. Communications and Urgent action procedure under extra-conventional mechanisms Unlike treaty-bodies, extra-conventional country and thematic mechanisms have no formal complaints procedures. The activities of the country and thematic mechanisms are based on communications received from various sources (the victims or their relatives, local or international NGOs) containing allegations of human rights violations. Such communications may be submitted in various forms (e.g., letters and faxes) and may concern individual cases or contain details of situations of alleged violations of human rights. Occasionally, communications addressed to the extra-conventional mechanisms contain information to the effect that a serious human rights violation is about to be committed (e.g., imminent extrajudicial execution, fear that a detained person may be subjected to torture, fear that a detainee may die as a result of an unattended disease or a disappearance has occurred). In such cases, the Special Rapporteur or Chairperson of a working group may address a message to the authorities of the state concerned, requesting clarifications regarding the case and appealing to the government to take the necessary measures to guarantee the rights of the alleged victim. Such appeals are primarily of a preventive nature and are resorted to on a regular basis by certain thematic mechanisms, in particular the Special Rapporteurs on extrajudicial, summary or arbitrary executions and on the question of torture, and the Working Groups on Enforced or Involuntary Disappearances and on Arbitrary Detention. However, other thematic and country mechanisms occasionally follow a similar procedure. In some instances, when the circumstances of the case justify such an approach, an appeal may be addressed by several special rapporteurs and/or working groups jointly. The criteria for urgent interventions vary from one mandate to another and are described in the methods of work of the respective mechanisms. The Convention on the Protection of All Persons from Enforced Disappearance (not yet in force, March 2010) contains an urgent action procedure.

D. United Nations Specialised Agencies and other agencies The Specialised Agencies of the United Nations are functional intergovernmental organisations affiliated with the UN. They are analogous bodies, working in such diverse areas as health, agriculture, international aviation and meteorology. Related to the UN through special agreements, the specialised agencies coordinate their work with the UN, but are separate, autonomous organisations. Several Specialised Agencies of the United Nations are concerned with human rights issues, such as the World Health Organisation (WHO) and the Food and Agriculture Organisation (FAO). Other UN agencies with semi-autonomous status, such as the, such as the UN High Commissioner for Refugees (UNHCR), also have important human rights mandates. Only one UN Specialised Agency will be dealt with in detail here: the International Labour Organisation (ILO). Short notes follow on the United Nations Educational, Scientific and Cultural Organisation (UNESCO) and UNHCR. Elsewhere in the Handbook, other specialised agencies, such as FAO, are also examined.

There are two distinctive types of supervisory mechanisms: a) Treaty-based mechanisms: supervisory mechanisms enshrined in legally binding human rights instruments or conventions. Within the UN framework these mechanisms are often called treaty bodies, e.g., the Human Rights Committee and the Committee on the Rights of the Child. The African Commission and future Court of Justice and Human Rights, the European Court of Human Rights and the Inter-American Court and Commission of Human Rights are also treaty bodies. b) Non-treaty based mechanisms: supervisory mechanisms not based on legally binding human rights treaty obligations. Generally, this type of mechanism is based on the constitution or charter of an intergovernmental human rights forum, or on decisions taken by the assembly or a representative body of the forum in question. Under the UN framework, the non-treaty-based mechanisms are referred to as charter- based mechanisms, which include the Human Rights Council 1503 procedure, the Universal Peer Review and special procedures. The European Commission against Racism and Intolerance under the Council of Europe is also an example of a regional non-treaty based mechanism. The following sections provide an overview first and foremost of the treaty-based mechanisms. The United Nations non-treaty-based mechanisms are dealt with in Part II (1.C). The various supervisory procedures established in human rights treaties can be divided into four main groups:

Reporting procedures Inter-state complaint procedure Individual complaint procedure Inquiries and other procedures

A. Reporting procedures Most human rights treaties include a system of periodic reporting. States parties to them are obliged to report periodically to a supervisory body on the implementation at the domestic level of the treaty in question. As formulated, e.g., in Article 40 of the ICCPR, states parties shall submit reports on the measures they have adopted which give effect to the rights recognised herein and on the progress made in the enjoyment of those rights. At the UN level, each treaty body has formulated general guidelines regarding the form and contents of the state reports (see HRI/GEN/2/Rev.2), and their own rules of procedures (see UN HRI/GEN/3/Rev.1). The report is analysed by the relevant supervisory body, which comments on the report and may request the state concerned to furnish more information. In general, reporting procedures under the different treaty-based mechanisms are meant to initiate and facilitate a constructive dialogue between the supervisory body and the state party. The quality of the reports submitted by states varies. Some reports reflect serious efforts to comply with the reporting requirements, while others lack credibility. In any case, the reports generally reflect the view of the respective state. Along with fluctuations in the quality of state reports, the overall compliance with submitting any report at all is often marginal. Many states reports are late by several years or simply are not submitted at all. Fortunately, committees often receive information and reports about a countrys human rights situation from other sources, including nongovernmental organisations, UN agencies, other intergovernmental organisations, academic institutions, and the press. The quality of decision-making throughout the reporting procedure depends to a great extent on this additional information that the experts may receive from the external sources. Additional information provided by NGOs and agencies of the United Nations help set forth a wider perspective as to the actual situation in the country concerned. In an increasing number of countries, NGOs prepare and submit alternative or shadow reports to the treaty bodies, aimed at counter balancing the information submitted by the

state. In the light of all the information available, the committees examine the reports together with government representatives. Based on this dialogue, the committees decide on their concerns about and recommendations to the state concerned, which in their written form are referred to as concluding observations. All UN human rights convention require state party reporting: Article 16 ICESCR, Article 40 ICCPR, Article 9 CERD, Article 19 CAT, Article 44 CRC, Article 18 CEDAW, Article 73 CMW and Article 35 CRPD set out a reporting procedure. Article 29 of the International Convention for the Protection of all Persons from Enforced Disappearance (not in force as of March 2010) also requires reporting. Under the regional systems, reporting mechanisms are found under Article 21 of the European Social Charter, Article 19 of the Protocol of San Salvador, and Article 62 of the African Charter on Human and Peoples Rights. The regular supervision of ILO conventions also encompasses a reporting mechanism. Each member state of the ILO must submit a report at regular intervals on the measures it has taken to give effect to the provisions of conventions which it has ratified. The Committee of Experts on the Application of Conventions first examines these reports in closed meetings composed of 20 independent legal experts. The comments of the Committee of Experts are made in the form either of observations which are published in the Committees report on the Application of Conventions and Recommendations, or in requests dealing with more technical questions addressed directly to the governments, which remain unpublished. The Committees report is then considered at the annual session of the International Labour Conference by a tripartite Conference Committee on the Application of Conventions and Recommendations (Committee on Application of Standards). It is worth noting that under the ILO framework member states must also submit reports on conventions they have not yet ratified, showing the position of the law and practice in regard to the matters dealt with in the conventions, and indicating the difficulties which have prevented or delayed ratification.

B. Inter-state complaint procedure Some human rights instruments allow states parties to initiate a procedure against another state party which is thought not to be fulfilling its obligations under the instrument. In most cases, such a complaint may only be submitted if both the claimant and the defendant state have recognised the competence of the supervisory body to receive this type of complaint. The possibility to lodge complaints against another state party is contemplated in, inter alia, Article 41 ICCPR; Article 21 CAT; Article 11 CERD; Article 33 ECHR; Article 45 ACHR; and Article 54 ACHPR. Within the framework of the ILO there are two procedures for inter-state complaints (see Article 26 of the Constitution and the procedure for freedom of association). In reality, however, inter-state complaint mechanisms are rarely used. Inter-state relationships are delicate and inter-state mechanisms may not be ideal procedures as states bringing complaints may elicit reprisals. In addition, many states have not recognised the competence of the supervisory bodies to receive inter-state complaints, though neither the European Convention for the Protection of Human Rights and Fundamental Freedoms nor the African Charter on Human and Peoples Rights require any special authorisation for a state party to be able to lodge interstate complaints. The European mechanism is the only inter-state mechanism that has been deployed several times although the Court has only delivered judgements in three cases: Ireland v. The United Kingdom (1978); Denmark v. Turkey (2000) and Cyprus v. Turkey (2001). In 2007 Georgia lodged an application against the Russian Federation with proceedings commencing in April 2009.

C. Individual complaint procedure It seems reasonable that individuals, on whose behalf human rights were stipulated in the first place, should be enabled to initiate proceedings to protect their rights. Such a procedure, whereby an individual holds a government directly accountable before an international supervisory body, aims to

afford far-reaching protection to the individual. Several international conventions have created the opportunity for an individual who feels that his or her rights have been violated to bring a complaint alleging a violation of certain treaty rights to the body of experts set up by the treaty for quasi-judicial adjudication or to an international Court (i.e. the European Court, Inter-American Court and future African Court of Justice and Human Rights). While there are some procedural variations between the different mechanisms, there are three procedures that all conventions have in common. In order for an individual to bring a case/communication/petition under a human rights convention, the following requirements have to be met: a) the alleged violating state must have ratified the convention invoked by the individual; b) the rights allegedly violated must be covered by the convention concerned; and c) proceedings before the relevant body may only be initiated after all domestic remedies have been exhausted. At the UN level, individual complaint mechanisms are found under eight conventions: in the First Optional Protocol to the ICCPR; the new Optional Protocol to the ICESCR (opened for signature and ratification in March 2009), Article 22 CAT; Optional Protocol to the CEDAW; Article 14 CERD, Article 77 CMW, the Optional Protocol to CRPD and in Article 31 of the International Convention for the Protection of All Persons from Enforced Disappearance (not yet in force as of March 2010). Individual complaints under one of the above-mentioned treaties can be brought only against a state that has recognised the competence of the committee established under the relevant treaty or which is party to the relevant optional protocols. In the case of the ICCPR, ICESCR; CRPD and the CEDAW, a state recognises the Committees competence by becoming a party to an optional protocol which has been added to the relevant convention. In the case of the CAT, the CERD and CMW, states recognise the Committees competence by making an express declaration under Articles 22, 14 and 77 (under CMW these provisions will become operative when 10 states parties have made the necessary declaration under Article 77), respectively. Anyone within the jurisdiction of a state party can lodge a complaint with a committee against a state that satisfies this condition, claiming that his or her rights under the relevant treaty have been violated. There is no formal time limit after the date of the alleged violation for filing a complaint under the relevant treaties, but the victim should submit a complaint as soon as possible after having exhausted domestic remedies. While there are procedural variations between the different UN treaties, their design and operation are very similar. In general terms, the system works as follows: Once a complaint (which should comply with some basic requirements) is submitted, the case is registered and transmitted to the state party concerned to give it an opportunity to comment. The state is requested to submit its observations within a set time frame. The two major stages in any case are known as the admissibility stage and the merits stage. The admissibility of a case refers to the formal requirements that the complaint must satisfy before the relevant committee can consider its substance. The merits of the case are the substance, on the basis of which the committee decides whether or not the rights under a treaty have been violated. Once the state replies to the complaint, the alleged victim is offered an opportunity to comment. Again, the time frames vary somewhat between procedures. At this point, the case is ready for a decision by the relevant committee. If the state party fails to respond to the complaint the committee may take a decision on the case on the basis of the original complaint. There is no appeal against committees decisions. When a committee decides that the state party has violated a right, or rights, enshrined in the treaty, it invites the state party to supply information within a given time limit on the steps it has taken to give effect to the committees findings. Under the European system, an individual complaint mechanism is found under Article 34 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. While under the old system, covered by Article 25 of the European Convention, the individual complaint mechanism was optional for state parties, under the new system, established by Protocol No. 11 (entered into force in 1998), the mechanism is compulsory for all states parties to the Convention. Under the European Convention, a group of individuals or a nongovernmental organisation may also lodge a complaint (this is likewise possible under the ICCPR and the American Convention). Article 35(1) of the European

Convention requires that the petition be lodged within six months after the date on which the last domestic jurisdictional decision was taken. At the Inter-American level, Article 44 of the American Convention on Human Rights allows petitions to be brought unconditionally before its supervisory body, the Inter-American Commission on Human Rights, unconditionally meaning that no separate acceptance by the state of the individual complaint procedure is required. The petitioner under this system does not have to be the victim but the petition must be submitted to the Commission within six months after the local remedies have been exhausted. Under the African system, Article 56 of the African Charter details the conditions under which the African Commission on Human and Peoples Rights may receive complaints from individuals. Communications can be submitted by private individuals, non-governmental organisations and various other entities and the petitioner does not have to be the victim. It has been criticised that the Protocol on the Statute of the African Court of Justice and Human Rights stipulates that individual complaints can only be referred to the future African Court by the African Commission, states parties to the Protocol, the African Committee of Experts on the Rights and Welfare of the Child, accredited African inter-governmental organisations and African National Human Rights Institutions. Direct access for individuals and nongovernmental organisations is not permitted unless a state party expressly makes a declaration accepting the competence of the Court to receive applications from these actors. Unlike the complaint procedures under the UN treaty bodies, in the European and Inter-American systems oral hearings are a regular part of the complaints procedure. In addition, the decisions of the regional human rights courts are binding upon states. Some non-treaty based procedures, also contemplate the submission of individual complaints. For example, in 1970 the UN Commission on Human Rights established the so-called 1503 procedure, which has been maintained by the replacement body, the UN Human Rights Council. The 1503 procedure allows the UN Human Rights Council to examine communications received from individuals and other private groups, with the aim to address consistent patterns of gross and reliably attested violations of all human rights and all fundamental freedoms occurring in any part of the world and under any circumstances. It should be emphasised that even though this procedure allows for individuals and nongovernmental groups to file a complaint, no individual redress is possible under this procedure. Instead, the complaints aim at identifying a consistent pattern of gross and reliably attested violations. When the UN Human Rights Council receives a communication under procedure 1503, it can adopt several responses. It may, inter alia, discontinue considering the situation when further consideration or action is not warranted, submit a request additional information from the state concerned, appoint an independent expert to monitor the situation and report back to the Council, take the matter up under its public procedure or recommend to the OHCHR to provide technical cooperation, capacity- building assistance or advisory services to the state concerned (see II1.C). In the same vein, the Commission on the Status of Women has also developed a complaint procedure. This mechanism is designed to identify global trends and patterns concerning womens rights. It was established pursuant to a series of resolutions of the ECOSOC, under which the Commission considers confidential and non confidential complaints regarding the status of women in any country in the world. Like the 1503 procedure, direct redress to victims of human rights violations is not afforded.

D. Inquiries and other procedures The group of supervisory mechanisms now discussed includes all procedures that do not fall under those mentioned above. Most involve inquiries, but others may entail initiatives aimed at preventing violations or promoting compliance with specific human rights. The supervisory bodies discussed in the previous section play a rather passive role as they generally cannot initiate proceedings, and are largely dependent on information submitted by governments, NGOs or individual petitioners. Recently, however,

several supervisory mechanisms have been established whereby an independent person or group of persons may raise, on the persons or groups own initiative, issues of non-compliance with human rights. Such a body may, for instance, act upon receipt of complaints or take an initiative itself. It may also initiate a visit in loco to gather information, or do so as part of a regular visit-programme. One example of a visit-programme is that of the Inter-American Commission on Human Rights, which has carried out more than 100 on-site visits from its establishment in 1961. (This system as initially a nontreaty based mechanism, but was later confirmed in Article 41 ACHR). Another example of an enquiry and in loco visits procedure - is that set out in Articles 126 and 132 of the Third Geneva Convention (1949), and the provision in Article 143 of the Fourth Geneva Convention providing for on-site visits to places of internment or detention. Mention should also be made of the International Fact-Finding Commission established under Article 90 Protocol I to the Geneva Conventions. Inquiries may also be undertaken by the special procedures operating under the Human Rights Council, such as thematic rapporteurs, country rapporteurs or working groups. These are often well suited to deal with specific situations or specific rights. The thematic rapporteurs or working groups may send communications or urgent appeals to raise human rights issues with governments; they can also institute fact-finding missions in loco and publicise their findings. A complaint is not the prerequisite for the special procedures to act, nor do they have to wait until domestic remedies are exhausted. Special procedures may request the governments concerned to provide more information; they may even initiate fact-finding missions for information only. However, fact-finding and in loco missions can only take place with the consent of the state concerned (see II1.C). Examples of existing inquiry and other procedures discussed here in more detail are the following:

Article 20 of CAT Optional Protocol to CAT European Committee for the Prevention of Torture (ECPT) Article 8 Optional Protocol to CEDAW Article 6 Optional Protocol CRPD European Commission against Racism and Intolerance (ECRI) OSCE High Commissioner on National Minorities

1. ARTICLE 20 OF CAT In addition to a reporting procedure, the inter-state complaint procedure and an individual complaint mechanism, Article 20 CAT also empowers its supervisory body, the Committee against Torture, to undertake certain investigatory action on its own initiative. The Committee may initiate an inquiry when it receives reliable information that suggests well-founded indications that torture is being systematically practised in the territory of a state party. Although the enquiry is to be confidential and requires the Committee to seek the co-operation of the state party concerned, the Committee is not prevented ipso facto from proceeding with the investigation because the state fails to co-operate with the Committee. However, in order for the Committee to investigate the charges in the territory of a given state, it needs the explicit consent of the state concerned. When the proceedings have been concluded, the Committee may include a summary of its findings in its annual report. The Committee has made use of the procedure under Article 20 several times, reviewing the situation for example, in Mexico, Sri Lanka, Peru, Egypt, Togo, Uzbekistan and Turkey (see II1.C). 2. OPTIONAL PROTOCOL TO CAT In 2002, the United Nations General Assembly adopted the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT).

The Protocol, which entered into force in 2006, establishes a unique two pillar visiting mechanism both international and national -to prevent torture in all places where persons are deprived of liberty. Under the OPCAT the Subcommittee on Prevention, composed of international experts, conducts periodic visits to all places where persons are deprived of liberty (such as prisons, police stations, psychiatric institutions, juvenile or migrant centres) in the states parties to the Protocol. The Subcommittee is complemented by National Preventive Mechanisms (NPMs) that also undertake regular visits to places of detention and should be able to carry out more thorough visit than the Sub-Committee in light of local knowledge and the potential for more effective follow-up. The UN Subcommittee and the NPMs should build a constructive dialogue with the authorities and provide recommendations on effective measures to be taken in order to further prevent torture and ill-treatment (see II1.C). 4. ARTICLE 8 OF THE OPTIONAL PROTOCOL TO CEDAW The Optional Protocol to CEDAW, adopted in 1999 (entered into force in 2000), strengthens the enforcement mechanisms available for the rights within CEDAW. As of March 2010, 99 states had ratified the Protocol. In addition to an individual complaint procedure, the Protocol established in Articles 8 and 9 an inquiry procedure, which enables the CEDAW Committee to initiate a confidential investigation when it has received reliable information indicating grave or systematic violations by a state party of rights set forth in the Convention. Moreover, if deemed necessary, and with the consent of the state party, the Committee may visit the territory of the state concerned. Any findings, recommendations or comments are transmitted to the state party, which may respond within six months. The inquiry procedure allows the CEDAW Committee to respond in a timely fashion to serious violations that are in progress within the jurisdiction of a state party, as opposed to waiting until the next state report is due to be submitted. In addition, the procedure offers a means of addressing situations in which individual communications do not adequately reflect the systematic nature of widespread violations of womens rights. It also addresses the situation where individuals or groups are unable to submit communications due to practical constraints or fear of reprisals. Under Article 10 of the Optional Protocol, states may opt-out of the inquiry procedure at the time of signature, accession or ratification (see II1.C). Effectiveness The purpose of the various supervisory mechanisms is to combat violations and to promote compliance with human rights treaties. Ideally, such mechanisms should function effectively. There are, however, a number of problems. Firstly, a large number of countries have either not recognised the competence of the relevant treatybased mechanisms or have failed to ratify the treaties concerned. Secondly, a number of treaty-based mechanisms, such as the individual complaint mechanism, are victims of their own success. The sometimes overwhelming number of individual complaints has led to a serious delay in the decision procedures, especially under the European Court of Human Rights. Moreover, many procedures for individual communications are understaffed and underfunded. At the UN level, the major shortcoming of the individual complaints procedure is the absence of legally binding judgements. Although the treaty bodies have developed certain follow-up mechanisms, such as the Human Rights Committee Special Rapporteur on Follow-up there is still much room for improvement. On the other hand, the most common supervisory mechanism, the examination of reports under the treaty-based reporting mechanisms, also faces problems. The value of reports depends on the depth of research that underpins them, the clarity of their content and the timeliness of their production and delivery schedules. The value and promptness of reports affects the quality of decision-making throughout the system. Unfortunately, some states do not seem to take the reporting system seriously and there are a great number of states that have not submitted reports required under the various treaties. In general, the human rights instruments do not provide for reprimanding delinquent states.

Additionally, the submission of reports to all the major human rights supervisory bodies creates practical difficulties for many states. At present, the reports are overwhelming in number and tend towards duplication. This creates a serious burden for states, especially for developing countries, which have to submit numerous reports. The same problem is encountered by the Secretariat, which needs to struggle to keep abreast of the growing number of reports requested by the various intergovernmental bodies. The sheer volume of reports is challenging the supervisory bodies capacity to provide focused and value-added analysis. Several proposals have been put forth with the aim to strengthen the treaty body system. On is the common core document wherein states would avoid duplication by providing more general information including information relating to substantive treaty provisions congruent across all or several treaties. This core document, which would minimise repetition of information in states reports to the treaty bodies, would be updated regularly and submitted to each committee in tandem with targeted treaty-specific reports. The non-treaty-based procedures are also encountering serious difficulties. Not only are the mechanisms political by nature, but the examination of violations often takes a long time. Moreover, some of these bodies, which act in regular meetings, are not well designed to respond to situations that require urgent actions. The mobilisation of shame - one of the tools employed by the charter-based procedures can, however, be very effective. It could be argued that a centralised system, either for the UN treaties or more generally, would enhance supervision. This, however, does not appear attainable for the time being, given the diversity of the human rights obligations and the institutions charged with the supervision. The supervisory mechanisms are the product of specific decision-making processes, which cannot be simply unified. At the UN level, it is one of the major tasks of the High Commissioner for Human Rights to improve the organisation and co-ordination of the activities of the various supervisory systems. Finally, it is worth noting that any improvement in the supervisory systems requires the support of states. It is fair to say that such support is often lacking, and states seem reluctant to encourage rigorous scrutiny of their human rights records. In these circumstances, NHRIs, NGOs and civil society are crucial to the strengthening of the human rights supervisory mechanisms. For example, the participation of NGOs in the reporting process may help to ensure that reports are submitted on time and that they are well prepared. In general, NGOs should play an active role in lobbying for states to pay more attention to the human rights supervisory systems.